City of Vancouver ordered to compensate man for damage caused by municipal tree

Gnarled tree branches are seen in this file photo. (Shutterstock.com)

The City of Vancouver was negligent when it failed to remove a tree that later lost a limb and damaged a fence during a snowstorm in November 2022, B.C.'s Civil Resolution Tribunal has ruled.

In a decision issued Tuesday, CRT member Micah Carmody ordered the city to pay nearly $3,700 to Stephen Edward Gibson, most of it compensation for the damage the tree caused.

The decision describes the tree as "a cherry or plum tree" that was located on the city-owned boulevard outside Gibson's property. It does not provide an address or a more specific location within the city.

Gibson purchased the property in 2016 for the purpose of redeveloping it, according to the decision. In August 2019, and again in early March 2020 – as that redevelopment was nearing completion – Gibson's builder called the city to request that the tree be replaced.

Later in March, the decision indicates, Gibson sent the city a copy of a report by a certified arborist, which had been completed in August 2019.

"The report assessed the tree as 'medium risk' and recommended the tree be removed for a combination of reasons, including age, form, possible decay, and recent damage," Carmody's decision reads.

According to the decision, the city arborist who reviewed Gibson's requests decided not to remove the tree. He told the CRT he conducted his own assessment of the tree in question and concluded it was low risk. He also criticized the report from Gibson's arborist, claiming it was "not clear and had little meaning" because it didn't follow the most current standards for tree risk assessment.

The 'policy defence'

When city-owned trees fall onto private property and cause damage, cities can invoke the "policy defence" to avoid liability in legal proceedings.

"The policy defence provides that governments, including local governments, cannot be held responsible in negligence for 'core policy decisions' because they do not owe citizens a duty of care for such decisions," Carmody's decision explains.

This defence allowed the City of Abbotsford to avoid liability for damage to a resident's trampoline in a CRT decision issued earlier this year.

In that case, the tribunal found that the property owner had not called the city's attention to potential danger from the tree, so the city was following its "core policy decision" when it failed to proactively prune or remove it.

In Gibson's case, Carmody concluded that the choice not to remove the tree was not a core policy decision, but rather an "operational" one.

"The city cannot rely on the policy defence," the decision reads. "I further find that given Mr. Gibson made a service request supported by an arborist’s report, the city owed him a duty of care."

No notes from inspection

Since declining to cut down the tree was an operational decision, not a policy one, the question to answer was whether it breached its duty of care by acting unreasonably or carelessly in the face of Gibson's warnings, according to the decision.

Although the city's arborist claimed he had inspected the tree in March 2020 in response to the complaints, the city did not provide any evidence – such as photos or notes – from that inspection.

Carmody drew an "adverse inference" from the lack of evidence, concluding that it didn't exist, and that the arborist – Reginald Eddy – had not actually visited the tree in person.

"Mr. Eddy’s statement is not entirely supported by his March 20, 2020 email, sent at 11:02 a.m. to Mr. Gibson’s builder," the decision reads.

"In that email, Mr. Eddy noted that many staff were isolating or working from home and said that the city would not remove the tree at that time based on the conditions stated in Mr. Lange’s report. It is odd that he would omit mentioning an in-person inspection if he had done one earlier that morning. He also did not mention that he concluded that the tree was low risk."

Carmody's decision goes on to clarify that the tribunal member is not accusing the arborist of lying.

"I find Mr. Eddy’s recollection of what he did in response to a tree removal request he received nearly four years earlier is unreliable," the decision reads. "I do not mean to imply that Mr. Eddy has been dishonest in his written statement. However, the evidence of an honest witness may still be unreliable."

'Obvious breach'

Having concluded that no in-person inspection was conducted, Carmody rejected the city's assertion that the decision not to remove the tree was a reasonable exercise of its discretion.

Gibson's complaints had alerted the city to the potential that the tree had internal decay and was nearing "the end of its useful life."

"This knowledge obligated the city to at least conduct an in-person inspection of the tree and reach its own conclusions about the extent of internal decay and the appropriate course of action," the decision reads.

"The city did not do that. By failing to do that, the city did not follow its Tree Inspection Policy, which said that all citizen service requests would lead to an inspection … The failure to inspect the tree or flag it for a thorough inspection beyond the annual general street-wide inspections was an obvious breach of the standard of care."

Carmody awarded Gibson $2,362.50 for the cost of replacing the damaged section of the fence, along with $604.28 for associated cleanup costs.

The tribunal member also awarded Gibson $203.10 in pre-judgment interest and $528.13 in CRT fees and dispute related expenses, for a total of $3,698.01 that the city must pay Gibson.