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ARTICLE · 15 NOVEMBER 2017

Agricultural Law Netletter - Tuesday, November 7, 2017 - Issue 383

Miller Thomson
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A Justice of the Ontario Court of Justice has upheld a conviction of destroying a boundary tree without the consent of an adjoining land owner.

CanadaReal Estate and Construction
Brian Kaliel K.C.
Brian Kaliel K.C.
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HIGHLIGHTS

  • A Justice of the Ontario Court of Justice has upheld a conviction of destroying a boundary tree without the consent of an adjoining land owner. Sections 10(1) and (2) of the Ontario Forestry Act provide that a land owner may, with the consent of the owner of adjoining land, plant trees on the boundary between the two lands, and that trees growing on the boundary of adjoining lands are the "common property" of the adjoining owners. Section 10(3) provides that anyone who destroys a tree growing on this adjoining boundary without the consent of the land owners is guilty of an offence. The Court reviews, in considerable detail, the lengthy statutory and judicial history of boundary trees under Ontario law and considers the situations in which an adjoining land owner may remove trees without the consent of the other owner, where the tree constitutes a nuisance. The Court concluded that the common law defence of nuisance did not apply in this case. (Gross v.

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