The law of nuisance requires that the nuisance be substantial and unreasonable before a court will give you an order.
The judge made a definitional error of law at paragraph 22 in Allen v MacDougall (2019) 145 O.R. (3d) 397, where he interpreted ‘substantial’ to mean the ‘destruction of the tree’, rather than determining that the negative effect of the tree upon the applicant had to be ‘substantial’. Though he stated it wrongly, he properly interpreted ‘substantial’ interference with reference to the homeowner rather than with reference to the rights of the tree not to be interfered with.
Trees straddling boundary lines in Ontario are ‘common property’, meaning that you can’t cut them down without the consent of the other party Forestry Act RSO 1990 F.26 s.10
The applicant therefore asserted nuisance: that their inability to build the extension that they had in mind was a ‘substantial’ interference.
The judge could have and should have limited his ruling to: ‘the Applicant has not established ‘substantial’ nuisance because the Applicant has not demonstrated that this is the only way in which the Applicant can reasonably extend their property’.
If the judge was going with the ‘no other way’ reason for rejecting the Applicant, he should have limited his ruling to failure to show ‘no other way’. Judicial conservatism.
Instead the judge in Allen v MacDougall confused the issue, by embarking upon a discussion of ‘moving to the nuisance’, which is one of the most important doctrines in law. But not necessary for this decision.
The judge broke new ground by trimming back the property rights of owners as against offending trees. A win for the trees a loss for property rights. Hitherto you could get rid of a boundary tree if it impeded your fence. It looks like motion judge Morgan would have no time for the fence-argument which was successful in Davis v Sutton(2017) ONSC 2277 in chopping down the boundary
