LEGAL RESPONSIBILITIES OF MUNICIPALITIES
by Geoffrey Belch, Assistant City Solicitor, City of London

Presented at the November 26, 1996 Municipal Arborists and Urban Foresters (Maufs) Meeting, Centennial Park Chalet, City of Etobicoke

Introduction
This presentation is intended to provide a primer in the law relating to claims against municipalities arising from trees located on municipal property. My viewpoint is that of a lawyer primarily engaged in defence work. Over the past seven years, I have had one "client" - the City of London. That arrangement has hopefully not affected my objectivity.

London is typical of many municipalities in Ontario in that it possesses many large old trees. Those of you who have visited London may be aware that the City is also known as the "Forest City". City historians tell us that the reason is not because London is a city with many trees but rather because when it was originally settle at the forks of the Thames, the Town was carved out of a large forest which then existed. Today there are many large, old trees that line London's streets, particularly in the older areas of the City, and in the parks which can be found along the north and south branches of the Thames River systems, which meet at the heart of the City and flow westward.

It is my experience that, over the past seven years, only a few of the legal actions commenced against the City of London relate to trees in our City. My research in theses cases supports my conclusion that this is also true for other municipalities. I leave it to each of you to draw your own conclusions why this is the case. For my part I believe that the public is not as litigious as is often assumed. I also believe that our urban forester and his crews have been doing a better job than some realize.

The claims that I have seen can be organized into the following classification:
- property damage and personal injury caused by trees falling during severe storms
- motor vehicle accidents occurring at intersections where stop signs or sight lines are obscured by trees
-sewers and drains becoming blocked by tree roots

Claims received by a municipality are often insurance company's efforts to reclaim their loss.

First Principles
Nearly every litigation case can be settled without proceeding to trial. The statistics tell us that more than 95% of the cases commenced in most jurisdictions in Ontario do settle short of the trial. In many cases a financial settlement is reached. The issue for the defendant deciding to go to trial is whether or not to pay the price tag which the plaintiff has put on his or her lawsuit. In that sense deciding to settle is no different from buying a car.

You may ask "What about setting a precedent, ie : pay now - pay forever?" Most cases are settled out of court and with little media coverage so that the public does not become aware of the payouts and is less likely to create a series of claims. It is the cases which go to court which create precedents.

One of the greatest frustrations that litigation lawyers face in advising the clients is striking the fine line between telling the client what to do (which is not our role) and explaining the options which the client faces and the consequences associated with each option.

Every civil lawsuit passes through four stages:

1. DELIVERY OF PLEADINGS
Statement of Claim
-A written document setting out compensation claimed, the facts of the case and the legal theory on which the case is based. (The claim must be made by an injured party within three months to six years depending on the type of claim).

Statement of Defence
-The theory of the defence, includes essential facts of the case, from the defendant's perspective.

2. DISCOVERY
Production of all relevant documents and oral discovery of the parties

-all documents should be delivered whether they help or hurt the case; the professional reputation of the municipality is at stake
-at this time, municipality must produce a representative familiar with relevant facts of the case
-oral questioning of both sides takes place with a court reporter present

3. PRE-TRIAL
Lawyers meet with pre-trial judges who offers an opinion as to the merits of the position taken by the parties

-the parties involved are the judge, the lawyer for the plaintiff and the lawyer for the defense

-the judge will give frank opinion of the issues which the parties should consider in coming to a compromise (if no compromise, move to stage 4)

4. TRIAL
In which all evidence is received "viva voce" and under oath

-our system of justice is "adversarial". This means that each side or "litigant" is responsible for bringing out the evidence most favourable to it's position.

-the judge's role is to weigh the evidence and apply certain legal principles

-back in 1920, municipalities petitioned the province asking that juries not try municipal court actions, suggesting that ratepayers would not make good decisions. It has stood since then.

The discovery process can be the most important and may be the only chance at defence for the municipality since most cases are settled before going to trial. Take advantage of any opportunity to attend a discovery. This will expose you to the type of questioning that you may face in a court situation.

There are four legal principles which recur constantly in the reported cases dealing with municipal liability arising from trees. These principles are as follows:

COMMON LAW PRINCIPLE OF NEGLIGENCE

COMMON LAW PRINCIPLE OF NUISANCE

SECTION 284 OF THE MUNICIPAL ACT

SECTION 3 OF THE OCCUPIERS' LIABILITY ACT

NEGLIGENCE
Negligence is the "failure to exercise that care which the circumstances demand". That sounds too simple so first year law students are taught to break this definition into four constituent elements:

-circumstances giving rise to a duty to take care owing to the complainant
-failure to attain the standard of care prescribed in law for the fulfilment of that duty
-actual damage suffered by the complainant
-a reasonable close causal connection between the conduct and the resulting injury

Negligence depends on the facts of each particular case. It can be omitting to do something which ought to be done. It can be doing something which ought to be done differently or not at all.

The first element, the duty principle, is often imposed by statute. As it relates to trees there are two statues, which do this precisely ( Municipal Act and Occupier's Liability Act ).

"DUTY" covers those responsibilities that are under the auspices of the municipality. The judge will weigh the failure of the municipality to exercise care.

In my experience the second element is the key liability issue in most lawsuits. The issue becomes what degree of care should be expected from the defendant in the particular circumstances of the case. The degree of care expected is "reasonable care". Ail the context of municipalities, this means that municipal employees must "exercise reasonable care to avoid acts or omissions which can be reasonably foreseen to be likely to cause injury to persons or property". Reasonable foresight is based on :

-facts known to the municipal employees
-facts which the municipal employees had a reasonable opportunity to learn.

The judge will be considering whether others would have done anything differently.

The degree of care may vary according to the risk to be encountered. It may vary with the magnitude of prospective injury. In the specific case of forestry operation, which qualify as "dangerous operations", there is undoubtedly a duty to take special precautions when the actual operation of felling and removing trees is being completed.

NUISANCE
Nuisance is a legal term which has a somewhat different meaning than that found in the dictionary. In law, a nuisance occurs when a defendant "substantially interferes with his neighbour's reasonable use and enjoyment of his land."

When this occurs the neighbour is said to have a "Cause of Action" in nuisance. The old english principle that every landowner is "lord of his castle" has always been subject to the necessary restraint that the same landowner must not interfere with his neighbour's legitimate enjoyment of his own property. If a municipality's actions (or failure to take reasonable action) interferes with a neighbour's enjoyment of his property then the municipality may be liable in nuisance. In this case it is immaterial that:

-the municipality is making a reasonable use of its property
-the works are carried on for public benefit
-the municipality was "there first" (ie. the plaintiff came to the nuisance)
-the plaintiff put up with the nuisance without objecting for many years.

Tree litter such as leaves, twigs and fruit are "nuisances" to homeowners but has not reached status of "legal nuisances" as far as I am aware.

SECTION 284 OF THE MUNICIPAL ACT
Section 284 of the Municipal Act provides that :
"Every highway and every bridge shall be kept in repair by the municipality having jurisdiction over it and in case of default the municipality is liable for all damages sustained by any person by reason of such default".

The purpose of this section is to require municipalities to take care of their roads to ensure that the public can pass with safety over public roads. The standard does vary with each situation. A municipality must therefore be prepared to alter the standards for their roads to meet changed conditions. However, associated with this are other rules which related to such things as road signs which are part of the Highway Traffic Act . for example :

-O.Reg.618/77 provides at Section 12(1) that the left edge of a stop sign shall not be more than 2 metres from the roadway.

-Section 33 provides that a sign prescribed by the regulations shall be so placed as to be visible at all times for a distance of at least 60 metres to traffic approaching the sign.

SECTION 3 OF THE OCCUPIERS' LIABILITY ACT
Section 3 of the Occupiers' Liability Act provides that:
"An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonable safe while on the premises."

This section applies to all municipal operations other than public roads and highways. It therefore applies to parkland and public buildings.

The provision was introduced in 1980. Its purpose is to reform the common law on occupiers' liability. It now imposes an affirmative duty upon occupiers to take reasonable care for the safety of people who are permitted on the premises.

NO MATTER WHAT : Duty vs. Budget - Liability is still evident

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