Many Canadian municipalities have written policy about how they will deal with the trees in their care. These policies are an essential component of due diligence in the event of a legal challenge. Any level of government (federal, territorial, local) can be sued for negligence, but not all such cases succeed. Most of these court cases focus on two crucial items. Firstly, was there a duty of care to be exercised. Did the defendant know or ought they to have known that their action, or lack of action would cause a problem? Did the defendant have a legal obligation to show reasonable care towards the plaintiff? If yes, then a duty of care is established.
The next question then becomes, did the plaintiff meet the required standard of care in fulfilling their duty?
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice and statutory or regulatory standards. (Ryan v. Victoria (City), 1999)
Canada (outside of Quebec) follows principles initially defined in the UK case of Anns v. Merton Borough Council in 1978. The principles have subsequently been refined by Canadian precedent and apply in many court cases. Importantly for governments, the test for negligence pivots on the policy that was in place at the time.
This is elucidated in Brown v. British Columbia (Minister of Transportation and Highways), 1994 as follows: The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot be applied to a policy decision, but it can be applied to operational decisions.
True policy decisions involve social, political and economic factors. In such decisions, the authority attempts to strike a balance between efficiency and thrift, in the context of planning and predetermining the boundaries of its undertakings and of their actual performance. True policy decisions will usually be dictated by financial, economic, social and political factors or constraints.
The operational area is concerned with the practical implementation of the formulated policies; it mainly covers the performance or carrying out of a policy. Operational decisions will usually be made on the basis of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.
The difference between policy and operational decisions is significant. For any level of government, policy decisions are immune from liability unless they are made in bad faith or are so irrational or unreasonable as to not be a proper exercise of discretion. Operational decisions are not immune from liability and are subject to the standard of care of reasonableness. (Craxton v. District of North Vancouver, 2006). So, lesson one is that there needs to be a policy in place. Without that, there can be no form of Anns defence in the first place.
Assuming there is a policy in place, it must cover the breadth of activities envisaged in such a way that it is not too specific nor too vague. For tree care that means the policy needs to acknowledge there are trees to be managed, and perhaps specify broad categories such as parks, highways or riparian areas. The approach to be used for managing these trees is laid out. Will they be inspected? If so by whom, when and how? What will the inspection protocol entail? What form of reporting is to be used? Who is responsible for these actions? The policy provides guidance about the service to be provided and at what level of intensity.
A well written policy will be rational, current and revised as needed to reflect changes in the standards of care, many of which are evolving. Risk assessment is an obvious example. Does the policy in place recognize that tree risk assessment in Canada generally uses the protocols laid out in the International Society of Arboriculture (ISA) Best Management Practices: Tree Risk Assessment manual? Does the policy recognize that tree risk assessors are now qualified under the ISA Tree Risk Assessment Qualification (TRAQ) programme? That is the accepted standard of care for tree risk assessment. If the policy and practice is using outdated language or outdated standards, such as the Matheny and Clarke protocol from the early 1990s, is the government in question still meeting the contemporary standard of care? The answer in court may well be no, and the defendant may be found liable.
Even if the policy is current in terms of standards, negligence may still ensue if the policy is not properly implemented in good faith. For example, once a policy decision is made to inspect the trees, the governing authority cannot then arbitrarily decide to not inspect trees. But, if the policy explicitly states that no tree inspections will be undertaken in certain areas or categories of land use, then there may be a policy defence available. Similarly, a failure to inspect based on allocation of resources to another use, may be accepted as a policy defence. There are after all limits on availability of time and money in most levels of government. But inaction for no good reason, or for an invalid reason, negates the policy defence. Errors of omission (something should have been done but wasn’t) or errors of commission (something was done but it was done incorrectly) will also be highlighted to try to show that the policy was not correctly implemented.
All of this comes back to the standard of care to be used in implementing the established policies.
In Rieberger v. J.C. Olsen Ltd., 1994. The court noted at [59]:
. . . the standard of care varies with the circumstances. This means that reasonable conduct depends on the balance between, on the one hand, the degree of likelihood that harm will occur, and, on the other hand, the cost and practicability of measures needed to avoid it, the seriousness of the consequences, the end to be achieved, including the importance and social utility of the activity in question, and the exigencies of an emergency, dilemma or sport.
In summary, the policy document is extremely important. Liability claims will be won or lost based on how well the policy is written, and how well it was implemented. Not only must the policy be well thought out and technically sound, it must also be written in a manner that it can be correctly and effectively implemented. For tree care, once a policy decision is made to inspect trees, the policy holder owes a duty of care to anyone who might be adversely affected if the policy is negligently implemented. There is considerable case law dealing with the role of building inspectors and the way in which they perform their duties in implementing established policy. The principles are the same for tree inspectors. With increasing numbers of people living next to municipally owned lands covered in trees, the tree policy and procedures are important and may warrant review and revision in some cases.
— Julian Dunster
Julian Dunster is not a lawyer and the above should not be construed as legal advice. If you have an issue requiring legal advice please consult a lawyer. This article is extracted from Trees and the Law in Canada. www.treelaw.info
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