B.C.’s Civil Resolution Tribunal has ordered the City of Vancouver to pay up after a resident’s fence was damaged when a tree fell on it.
In a June 25 decision, tribunal member Micah Carmody said Stephen Edward Gibson owns a residential property in Vancouver. On the boulevard in front of the house is a tree — either cherry or plum, Carmody said.
Gibson said a branch fell from the tree Nov. 30, 2022 and damaged his aluminum fence.
Gibson claimed $3,899 for fence repairs and cleanup costs.
The city said it wasn’t liable for the fence damage because it followed its street tree maintenance policy and the tree had no outward indicators of decay.
Gibson bought the property in 2016 to redevelop it, redevelopment that was nearing completion by August 2019.
Carmody said that on Aug. 16, 2019, and again on March 6, 2020, Gibson’s builder phoned the city to request that the tree be replaced.
On March 18, 2020, Gibson’s builder sent the city an Aug. 14, 2019 report by certified arborist Richard Lange, which 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.
However, on March 20, 2020, a city certified arborist, Reginald Eddy, replied to Gibson’s builder saying that, based on Lange’s report, the city would not remove the tree.
During snowfall on Nov. 30, 2022, a large limb fell from the tree and damaged the fence.
On Dec. 9, 2022, Lange examined the tree and limb and found signs of extensive decay at the failure point and “fungal fruiting bodies” (mushrooms) at the tree’s base.
Carmody said the city took down the remaining portion of tree the next day.
“City employee JC observed that the limb had internal decay but no ‘visible outwardly signs of decay or defects,’” Carmody said.
Policy defence
The city relied on what is known as a policy defence, which 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.
However, it was Eddy’s actions on which Carmody relied.
“His decision involved reviewing Mr. Lange’s report and exercising his discretion after applying objective criteria to determine the tree’s level of risk,” Carmody said. “I find this was an operational decision, and the city cannot rely on the policy defence.”
Carmody said the city should have gone further in its evaluation of the tree in light of Lange’s report.
“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 ruled.
In total, Carmody awarded Gibson $3,698, including interest, fees and expenses.
