



COURT OF APPEAL FOR ONTARIO

CITATION: Hartley v. Cunningham, 2013 ONCA 759

DATE: 20131217

DOCKET: C57242

Juriansz, Hourigan and Benotto JJ.A.

BETWEEN

Katherine Anne Hartley

Applicant (Appellant)

and

Hilary Cunningham and Stephen Scharper

Respondents (Respondents in appeal)

John A. Howlett, for the
    appellant

Clayton C. Ruby and Nader R.
    Hasan, for the respondents

Heard and released
    orally: December 10, 2013

On appeal from the judgment of
    Justice J. Patrick Moore of the Superior Court of Justice, dated May 17, 2013.

ENDORSEMENT

[1]

The appellant appeals a judgment dismissing her application for a
    declaration that she is the sole owner of a large Norway maple tree so that she
    can cut down the tree without the respondents consent. The respondents are her
    next-door neighbours. The appellant argues that ownership of the tree should be
    determined in accordance with jurisprudence under the
Trees Act
,
    R.S.O. 1990, c. T.20, which was replaced by the
Forestry Act
, R.S.O.
    1990, c. F.26. Under that jurisprudence, the appellant submitted she would be
    the sole owner of the tree because at ground level its trunk was entirely or
    almost entirely on her side of the property line.

[2]

The
Forestry Act
provides in s. 10(2): Every tree whose trunk
    is growing on the boundary between adjoining lands is the common property of
    the owners of the adjoining lands. There is no definition of trunk in the
    legislation.

[3]

The application judge considered the evidence before him, including the
    evidence of the expert witnesses, and concluded that the word trunk should be
    given its ordinary dictionary meaning. It is that part of the tree from its
    point of growth away from its roots up to where it branches out to limbs and
    foliage. There are no words in the statute that limit the meaning to the
    trunk at ground level. He commented that the point at which the trunk emerges
    from the soil would be lead to arbitrariness because soil can be added to the
    base of the tree to change the point of emergence. On the basis of the evidence
    before him, the application judge concluded that the tree was a boundary tree
    and that the appellant and the respondents are co-owners.

[4]

We agree with the application judges interpretation of s. 10(2) of the
Forestry
    Act
and his conclusion dismissing the appellants application to be
    declared the sole owner of the tree.

[5]

The appeal is therefore dismissed with costs to the respondents fixed in
    the amount of $10,000, all inclusive.

R.G. Juriansz J.A.

C.W. Hourigan J.A.

M.L. Benotto
    J.A."


