A British Columbia small claims tribunal has dismissed a homeowner’s claim of damages against the Township of Esquimalt after a municipal tree fell onto his property, damaging a fence and storage unit. The Civil Resolution Tribunal ruled Wednesday that the municipality was not guilty of either negligence or nuisance in failing to address the tree, even though the homeowner had reported concerns about its condition the day before it fell. The tribunal heard that the homeowner’s property was next to the water, where a narrow strip of land between his property and the water is owned by the municipality. According to the tribunal’s decision, the homeowner’s mother called the Township of Esquimalt late on the afternoon of Friday, April 19, 2024, to report concerns about the tree’s condition. She was told that a maintenance crew would likely come out to inspect the tree the following Monday. But the tree fell the day after the phone call, causing an estimated $1,738.97 in damages to the homeowner’s chain-link fence and a storage box. The maintenance crew visited the property on the Monday and removed the fallen tree. But when the homeowner later asked the municipality to cover the cost of the damages, it refused, according to the decision. Negligence claim Tribunal member Jeffrey Drozdiak wrote that to prove negligence, the homeowner would have to show the municipality owed him a duty of care. Esquimalt argued that it could not be held liable for negligence because the municipality’s tree management program is a “core policy decision,” which does not owe a duty of care to individual citizens. Evidence from Esquimalt’s parks manager showed the municipality operates both proactive and complaint-driven tree inspections. Because of financial and staffing limitations, it does not proactively inspect every tree within municipal boundaries. Instead, the municipality prioritizes trees in public areas with significant pedestrian and vehicle traffic. Esquimalt maintains an inventory of 5,873 trees and has three arborists responsible for maintaining them, according to an affidavit from the parks manager. The arborists work from 7 a.m. to 3:30 p.m., Monday to Friday, and do not work weekends or holidays. ‘Budgetary constraints’ The tree that fell was not part of the municipality’s tree inventory because it was not located near significant traffic and did not pose a high risk to the public. Therefore, Esquimalt did not owe the homeowner a duty of care to proactively monitor that particular tree, the tribunal found. “I find Esquimalt’s decision to have a reactive policy towards trees not in its inventory is a core policy decision,” Drozdiak wrote. “The policy is based on budgetary constraints, and I infer high-level employees set this budget through a deliberative process.” The decision noted that a municipal government can still be liable if a policy is irrational or made in bad faith, but there was no evidence of either in this case. The tribunal separately considered whether Esquimalt acted reasonably by not immediately sending arborists to tend to the tree once the complaint was made. The decision found the municipality’s decision to only employ arborists from Monday to Friday is not a core policy decision, but rather an operational decision. Still, Drozdiak wrote that there is nothing unreasonable about the work schedule, and the homeowner did not suggest that maintenance workers should have attended the property on the weekend. “Instead, he simply argues that Esquimalt knew about the tree before it fell,” the decision said. The evidence indicated the tree complaint was lodged after the maintenance crew had already gone home for the weekend. An email sent by an Esquimalt office administrator to the lead arborist at 4:57 p.m. that day asked the arborist to investigate the concern. The tribunal found that Esquimalt had agreed to inspect the tree as soon as an arborist was available and there was no evidence the municipality knew, or reasonably should have known, that the tree was about to fall. Nuisance claim The tribunal also considered the homeowner’s claim of nuisance against the municipality. Nuisance law protects a person’s use and enjoyment of their property from unreasonable interference. In cases involving trees, the tribunal found that a property owner must establish that the tree’s owner knew or should have known the tree presented a hazard or was at risk of falling. “Once the tree’s owner is aware of a problem, they must take reasonable steps to address it,” Drozdiak wrote. “So, the question here is whether Esquimalt took reasonable steps to address (the) complaint.” The tribunal again found no evidence that Esquimalt knew, or should reasonably have known, that the tree was “imminently going to fall.” If the tree was a serious concern, the homeowner presumably would have notified the municipality earlier, according to the tribunal. “Under the circumstances, I find Esquimalt acted reasonably by agreeing to inspect the tree on the next business day,” the decision said. “So, I find Esquimalt did not commit a nuisance.” Drozdiak acknowledged the homeowner acted responsibly by reporting the tree but that does not mean he is absolved from incurring damages. “A municipality is not an insurer against any form of mishap that can occur within its boundaries,” the decision concluded, citing an earlier B.C. Supreme Court ruling and dismissing the homeowner’s claim for damages.
