Reminder: Check the property boundary before cutting down (your neighbour's) trees

A Superior Court case heard in April, 2018 involved rural neighbours and the unauthorized removal of trees.  Neighbour O sold trees on his property to the owner of a local sawmill, T.  T apparently had a permit to remove the trees from Neighbour O's property, and took the timber that he had purchased.  T did not, however, have a permit to remove trees from Neighbour M's property, and neither Neighbour O nor Sawyer T had permission from Neighbour M to take down any trees at all on her property.  Unfortunately, T removed 98 mature white cedar trees from a forest area on Neighbour M's property.

Neighbour M sued Neighbour O for damages in trespass.  The trespass was admitted.  However, the parties disputed two issues: 1) a limitation period defence put forward by Neighbour O; and, 2) the amount of damages to be awarded for the trespass, if the limitation period defence did not eliminate the claim entirely.

The Court rejected the limitation period defence.  The trees had been removed by T in February, 2011.  Although Neighbour M did not commence her claim until October, 2013, some 32 months after the trees had been removed from her property (beyond the 2-year limitation period applicable to most damages claims in Ontario), Justice Gordon accepted Neighbour M's explanation that she did not become aware of the tree cutting until November, 2011 (less than 2 years before the action was commenced).  The limitation period did not begin to run until Neighbour M had discovered her claim; Justice Gordon accepted her explanation that she had not visited the area of her property where the trees were located (which was a 15 minute walk from her residence) during the period from February to November, 2011.

As for damages, Justice Gordon decided that, in addition to an award of $8,000 as compensation for the value of the timber taken by T, the cost of restoration was the appropriate measure of damages for the trespass in this case.  He noted that the 98 trees taken had been growing for decades and could not be replaced, and further decided that the natural forest area should be left to re-seed itself.  Replanting was not found to be warranted.  Justice Gordon awarded Neighbour M a further $30,000 plus HST for the cost of "appropriate restoration", which would involve removing broken tree limbs in the canopy and on the forest floor, removing tree tops from timber removed, removing damaged, leaning and spring pole trees, chipping and spreading chips on the forest floor, and cutting stumps to ground level.

Read the decision at: M v. O.

Normal Farm Practices Protection Board dismisses application by landowner whose farm tenants clear-cut trees

A corporate landowner in Grey County applied to the Normal Farm Practices Protection Board for a ruling that the County's Forest Management By-law restricted a normal farm practice.  The landowner was effectively seeking a ruling that would eliminate a charge that had been laid against the landowner under the By-law after the landowner's tenants cleared a large portion of the landowner's property that was covered "with a young ash tree stand".  The landowner contended that the clearing operation was a normal farm practice.

Neither the tenants nor the landowner had obtained a minor exemption or permit under the Forest Management By-law, which was required for the clearing work.  However, the Board could make a ruling under the Farming and Food Production Protection Act, 1998 that the By-law did not apply to the clearing operation on the basis that it was a normal farm practice carried on as part of an agricultural operation.  The Act provides that no municipal by-law applies to restrict such a practice.

The Board had three issues to determine:

1.      What is the specific practice the Applicant claims is being restricted by the by-law?

2.      Is that practice a normal farm practice in the circumstances of this farm operation?

3.      If the practice is a normal farm practice, is it restricted by the Forest Management By-Law No. 4341-06?

On the first issue, the specific practice in question in this case was the clear cutting of trees from the landowner's property to permit land to be farmed. 

On the second issue, the Board noted that the landowner, the Applicant, had the onus of proving that the clear cutting was a normal farm practice in the circumstances of its specific farm operation.  Here the landowner's case failed.  The Board found that the landowner failed to prove on a balance of probabilities that the tree cutting was a normal farm practice.  The only witness for the landowner, the corporation's president, submitted no evidence that the clear cutting was a normal practice or innovative technology.  And no expert evidence was presented on that issue either.

In the absence of any evidence, the Board dismissed the application.

Read the decision at: 759501 Ontario Limited v Corporation of the County of Grey.

Landowner Information - Protection of Butternut Trees (Ontario)

Here is a useful information sheet from the Forest Gene Conservation Association on the protection of butternut trees (an endangered species) in Ontario: Butternut Info for Landowners.

 

As noted recently by a reader, planted butternut trees (i.e. not naturally occurring) are not protected unless they were planted as a condition under an Endangered Species Act permit.