The Forestry Chronicle. May 2019. Vol 95, #1.
Trees and the Law in Canada
Reviewed Philip Cottel, RPF
If you are a forest professional, arborist, legal professional, or simply a landowner with trees on the property, this book by Julian Dunster would be a valuable reference to have on your bookshelf. Do you know the difference between a boundary tree and a border tree? Do you have a legal survey of a subject property to guide your prescriptions or actions? An existing fence or hedge does not define the property line, and there are sanctions for crossing onto a neighbour’s land. If work is to be done, it’s important to have well defined project objectives and agreements, and correct boundary locations before it begins. Where trees and hedges are concerned, potential liability abounds.
This book offers a comprehensive review of case law relating to trees across Canada, and interpretations under the Civil Code in the Province of Quebec. The Table of Contents offers an overview of topics reviewed:
• The Canadian legal system
• Legal principles and concepts
• Boundaries and boundary trees
• Trees as a nuisance – liability based on harm suffered
• Trees damaged due to trespass
• Negligence, foreseeability, tree damage
• Valuing the damage caused
• Tree law in Quebec.
One might expect that such a book would make for somewhat tedious reading; I found it to be the opposite.
The cases reviewed are like a series of mini ‘who done its’, and it is interesting to see how they were argued and decided, in some instances building upon one another over centuries. It has also caused me to look at my own trees and those of my neighbours with a more wary eye. The Foreword is by The Honourable Edward C. Chiasson Q.C. who wrote: “Julian Dunster is to be congratulated and held in awe for undertaking the monumental task of helping those who are confronted with problems involving trees to have a basic guide to the issues they face and their resolution.” He noted that the book will benefit not only operational people and landowners, but also legal practioners and judges who may
have limited experience with issues around trees.
Dr. Dunster has a Bachelor’s degree in forestry from Bangor University, North Wales, a Master of Forestry from the University of British Columbia, and a Doctorate in Regional Planning and
Resource Development from the University of Waterloo. He is a Certified Arborist with the International Society of Arboriculture (ISA), and a Registered Professional Forester in British Columbia. He is a Registered Consulting Arborist in the American Society of Consulting Arborists, and is Tree Risk Assessment Qualified with ISA. Dr. Dunster has received many awards for his work, most recently named as Arborist of the Year (2016) from the Pacific Northwest Chapter, ISA.
This book currently comes in hard cover only, and is available through http://www.treelaw.info/.
It represents a monumental amount of research and compilation by an authority in the field, and if the book’s message helps prevent an inadvertent treerelated offence, be it trespass, accident or nuisance, it is well worth the price.
Philip Cottell, RPF (Retired),
Life Member, Association of British Columbia Forest Professionals
The Advocate. March 2019. 77:2 at 283.
NEW BOOKS AND MEDIA
Trees and the Law in Canada, by Julian A. Dunster, Dunster & Associates Environmental Consultants Ltd., 2018, Hardcover, 262 pages
Reviewed by Mark Haddock
A client once asked for a legal opinion on remedies for trespass involving many trees cut down by a neighbour’s contractor. While the basic law is straightforward, determining how to assess damages, how to get the right expert evidence and how to find the most relevant case law proved to be a bit more challenging and time consuming than expected.
How much simpler that task would be now with the new book Trees and the Law in Canada, a timely and definitive summation of “tree law” by respected, B.C.-based arborist and professional forester Dr. Julian A. Dunster. It is refreshing to have a book like this written by an internationally acclaimed expert, and this likely accounts for the book’s very practical organization. For example, in discussing nuisance, it sorts doctrine and case law by factual context, from liability for falling branches and debris, to different types of damage caused by tree roots, to compensation for the loss of views. The discussion of trespass distinguishes 11 different types of trespass and canvasses numerous cases in which each was adjudicated by courts—likewise for the negligence chapter. The book includes a similarly comprehensive review of tree law in Quebec.
This kind of detail and organization makes the text a valuable resource that will lighten the lawyer’s task and orient the expert witness. So often our case law search results must be followed by considerable effort aligning decided cases with the relevant fact patterns before us. Trees and the Law in Canada does much of that work in the way it presents information. Its 19-page tabulation of hundreds of Canadian and U.K. tree cases alone makes the book a good law library purchase and demonstrates the passion Canadians attach to trees.
The massive scope of the research and writing task clearly indicates that this book was largely a labour of love and public service by an uber-professional. Dr. Dunster set out to reach a broad audience including judges, lawyers, foresters, arborists, municipal staff and the general public. In his foreword to the book, the Honourable Edward Chiasson, Q.C., notes that this is “no mean task, but amazingly, he has done it!” I agree.
BC Forest Professional.
March – April 2019. Page 30.
Review by Mark Haddock
Trees and The Law in Canada
Written by Julian A. Dunster
Dunster & Associates Environmental Consultants Ltd.
ISBN: 978-0-9937133-2-3 (hardcover)
Foresters who need to know about the law relating to trees on private property now have an excellent resource to consult. Trees and The Law in Canada is a timely and thorough summation of tree law by respected, BC-based arborist and professional forester Dr. Julian A. Dunster.
It is refreshing to have a resource like this written by a forester, because it approaches the law in a very practical way. With support from legal experts, Dr. Dunster clearly explains basic legal doctrines that affect the rights and liabilities of tree owners and those affected by the trees on neighbouring property. For example, it covers liability for falling branches and debris, to different types of damage caused by tree roots, and compensation for the loss of views. It distinguishes 11 different types of tree-related trespass, and canvasses numerous cases decided by courts. The chapters on negligence and valuation of damages are equally thorough. The book includes a detailed review of tree law in Quebec’s civil law system, and discusses basic legal procedures and principles that will help any forester or arborist who is asked to provide expert opinion evidence.
The enormity of the research and writing task clearly indicates this book was a labour of love, as well as a public service. Dr. Dunster set out to reach a broad audience including judges, lawyers, foresters, arborists, municipal staff, and the general public. In his foreword to the book, Hon. Edward Chiasson, Q.C. notes that this is “no mean task, but amazingly, he has done it!” I agree.
Arborist News February 2019, Volume 28, Number 1, Page 51
Review By Dennis Yniguez, Consulting Arborist/Attorney at Law
Dunster has completed a thorough, understandable, and satisfying review of legal principles and decisions underlying the resolution of tree-related disputes in Canada. The book reflects a rigorous scholarship informed by decades of consulting experience. The outcome is a well-researched reference that is complex enough to be engaging, and practical enough to be genuinely useful.
Because trees are not aware of political boundaries, many tree-related effects are identical within (and beyond) the borders of Canada (e.g., branch and root encroachment, whole and partial tree failure, sidewalk and structural damage, view blockage, and shared tree ownership).
Canadian and American legal systems both derive from English common law (except for the Canadian province of Quebec and the American state of Louisiana which have origins in the Napoleonic Code of France). Therefore tree cases in Canada, England, and the United States are decided under similar principles.
In Trees and the Law in Canada, the chapter on Legal Principles and Concepts reviews such topics as duty of care, standard of care, reasonableness, trespass, nuisance, elements of negligence, and measures of damages that will be applied to disputes between neighbors, businesses, and governmental entities. The discussion is straightforward and accessible to arborists, foresters, risk managers, surveyors, wooded property owners, and attorneys.
The chapter on Valuing the Damage Caused includes an excellent overview of approaches to tree valuation, as set forth in the just-published 10th Edition of the Guide for Plant Appraisal (tenth edition). Methods for calculating lost tree value are dissected and clarified. Canadian court battles over appraisal techniques (good, bad, and pathetic) are described in entertaining detail.
Other useful discussions include the complexities of tree measurement and some pitfalls one may encounter when plotting tree locations near boundaries.
I recommend this book for those who want to deepen their understanding of tree-related controversies. It is illuminating and highly practical.
Ground Magazine, Winter 2018. Ontario Association of Landscape Architects
As long as people have been planting trees, there have been battles over trees, with associated questions about ownership, responsibility, hazards, liability, and more. These issues sometimes end up in the courts, and there is a complex, at times contradictory, body of case law that impacts the questions in specific cases and sets precedents to guide future judicial decisionmaking. Dr. Julian Dunster, a consulting arborist, professional forester, and professional planner with close to 40 years of experience, brings these issues into focus with admirable clarity and engaging writing in the new and updated edition of his classic book Trees and the Law in Canada (Dunster & Associates Environmental Consultants Ltd., 2018).
The most comprehensive book on tree law in Canada, the new edition includes a chapter devoted to the unique nature of tree law in Quebec.
Anyone with an interest in trees will find the information useful, thought-provoking, and debate-inducing. For more information or to order the book, visit www.dunster.ca.
Plan Canada Winter 2018. Canada Institute of Planners
Review by David Witty, PhD, MRAIC, FCIP, RPP.
David has combined public and private practice and teaching for much of his career. He is currently Senior Fellow Urban Design, Master of Community Planning Program, Vancouver Island University IVIU).
The topic of trees, their role in the environment, their aesthetic appeal, and their economic value can frequently morph into neighbour versus neighbour and developer versus city hall. Trees hold meaning. They are often key elements of greening the city, enhancing open space, softening urban redevelopment projects, and improving amenity packages. As planners, we are faced with the exigencies of politicians, landowners, and the general public. Often, their issues relate to what we might describe as the mundane. But, in the eyes of the beholder, emotion and personal opinion ‘gets in the way’ of rational, considered decisions. As a result, over the years there has developed significant case law that sets out precedent and direction for those involved in the jurisprudence of trees. Until now, there has not been one source, a go-to resource, that provides cogent direction for understanding the complex issues related to trees, including the legal principles and concepts that guide the courts in such matters; the importance of duty that all governments must acknowledge: and the role of unreasonable risk and associated negligence and liability that face local governments, landowners, and developers.
In Trees and the Law in Canada, Julian Dunster has written a significant and detailed assessment of the relationship between trees and the law. The foreword alone, written by the Honourable Edward Chiasson, DC, is endorsement enough of this book’s importance and its contribution to the law surrounding trees. For me, however, what merits praise is the book’s significant depth of coverage on the topic of trees and the law, along with the way that content is well-ordered and presented.
This is a subject that many would assume to have important value for arborists alone. While arborists will find the book critical to their work, our planning practice and local governments will also find particular merit in this comprehensive assessment of the implications that trees have in relation to risk, liability, and negligence. Local governments can be faced with questions about nuisance trees, loss of enjoyment versus trees as nuisance, and trees that create loss of views and potential devaluation of property value and, in the case of developers, land/unit values. Questions arise around approval and liability. What am the obligations of local government in relation to tree management and potential negligence?
Dunster provides a helpful review of the various liabilities faced by local government and the courts’ view of their merit. In the Chapter “Boundaries and Boundary Trees” he sets out a thorough review of the courts’ interpretation of boundary issues and their implications far matters related not only to trees, but also to local government. As well, his review of nuisance (a term not unfamiliar to local government) is very helpful as a framework and review of legal implications.
At some 255 pages in length with eight chapters ranging from -“Trees as Nuisance – Liability Based on Harm Suffered” to “Negligence, Foreseeability, Tree Damage to Property and People,” Trees and the Law in Canada is a very comprehensive. manageable, and well-organised book. Its legal citing is clear, helpful, and well documented. Dunster is an acknowledged expert on matters related to trees. As an arborist and registered planner, Julian walks in two worlds and is able to provide plain, clear direction for both arborists and planners alike. He has addressed the Civil Law of Quebec as well. This work is truly a remarkable and comprehensive undertaking. It speaks to Dunster’s commitment to excellence and his dual professions.
As he notes, trees are a fundamental part of the urban ecosystem, providing economic, environmental, and social benefit. As a result, the way trees are managed and the aspects of their growth have implications – many of which have an emotional element – not only upon the work of arborists, but also on urban planners and lawyers practicing in municipal law. Dunster’s book provides an important contribution to understanding the case law related to urban trees. His reference to legal principles and concepts should he required reading for all urban planners. While specific to arborists and municipal Lawyers, this book has an important place in the libraries of all local governments.
As the Honourable Edward Chiasson notes in the preface, “Julian Dunster is to be congratulated and held in awe for undertaking the monumental task of helping those who are confronted with problems involving trees to have a basic guide to the issues they face and their resolution.” Those are high words of praise from a noted legal mind.
I agree with Edward Chiasson and suggest that Dunster’s work should and will become a key reference for all local governments as they face the often emotional debates about the law of trees.
Review by Tree Service Canada, Fall 2018
Trees are an integral part of the Canadian landscape. They have shaped our heritage and continue to be an important part of our culture. But, they are also controversial in many different ways. Court records are replete with cases involving trees on public or private lands including industrial logging, farmlands, parks, private homes and highways. Trees have caused damage to homes, buildings, cars, electricity lines, sewers and sidewalks. People have been injured by trees, and have injured trees. Courts have awarded significant amounts of money for injury, and damage, resulting from negligence or nuisance. There is an abundance of case law dealing with these issues, some of which are commonplace and some quite esoteric. In all cases, the underlying legal principles of Canadian Law have been tested reviewed and in some cases adapted or amended.
Trees and the Law in Canada, by Tree Service Canada columnist Dr Julian Dunster, is a comprehensive review of the Canadian case law. It provides the reader with in-depth analysis of legal principles, provincial variations and how these apply to specific cases. The book is an indispensable reference for lawyers, judges, foresters, arborists, city administrators and risk managers, as well as the general public.
Dr. Julian Dunster is a Consulting Arborist, Professional Forester and Professional Planner. With almost four decades of experience, in many parts of the world, along with experience as an expert witness in Canada and Hong Kong, Julian has a unique background. His work has garnered many awards and he is an Honourary Life Member of the International Society of Arboriculture, as well as the Pacific North-west Chapter of that organisation.