Lord v. City of Vancouver Date:, 2015 BCPC 160

Citation: Lord v. City of Vancouver Date: 20150421 2015 BCPC 0160 File No: 14-50198 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims) BETWEEN: SOFIA LORD CLAIMANT AND: CITY OF VANCOUVER DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing on their own behalf: S. Lord Counsel for the Defendant: Kevin T. Nakanishi Place of Hearing: Vancouver , B.C.

Date of Hearing: March 25, 2015 Date of Judgment: April 21, 2015 [ 1 ] On May 23, 2014, a large branch fell from a tree on the boulevard in front of 3240 West 24 th Avenue, Vancouver, BC (“West 24 th ”) onto a car owned by the Claimant, Sofia Lord (“Ms. Lord”). The boulevard in front of Ms. Lord’s residence was owned by the Defendant, the City of Vancouver (“City”). [ 2 ] Ms. Lord alleges that the City was negligent in the manner in which it maintained the tree and breached its duty of care to her. [ 3 ] The City denies liability.

It says that the tree policy for the City was reasonable, and that the City carried out its duty in that regard. Also, the City says that if it is found liable, the Claimant is liable for contributory negligence. [ 4 ] It is agreed by the parties that, if I allows the claim, damages will be $3,350, plus filing fees, service fees and pre-judgment interest. Evidence [ 5 ] Ms. Lord testified that the branch fell on her car at about 5:30 a.m. on May 23, 2014. Several photographs of the fallen branch were introduced into evidence.

The City takes no issue with the particulars of the incident. [ 6 ] In cross-examination, Ms. Lord said she had not noticed any discoloration of the tree previous to the incident, nor had she any cause for concerns. Also, she had never contacted the City about the tree. [ 7 ] Ms. Lord called one witness, Elyn Underhill. Ms. Underhill is a lawyer. She assisted Ms. Lord with the preparation of the materials and argument in these proceedings. [ 8 ] Ms. Underhill lives in a marriage-like relationship with Ms. Lord’s father. Ms.

Underhill’s involvement in this case did not raise any concerns of bias, nor did the City suggest same. [ 9 ] Ms. Underhill heard a large noise associated with the branch falling on May 23, 2014. [ 10 ] Ms. Underhill testified that there were several other tree incidents on the subject property or near it. One occurred in October 2011 on the subject property, and two others occurred in close proximity to the subject property. [ 11 ] Mr. Nakanishi objected to Ms. Lord testifying about conversations she had with a City worker as hearsay. However, it was agreed by Ms.

Lord that if I allowed the evidence, she could not rely upon it as an admission of liability by the City. On that basis, I allowed Ms. Underhill to testify about the conversation she had with the City worker. [ 12 ] Ms. Underhill explained that there was a previous attendance at West 24 th by a City worker, who noticed a discoloration on the subject tree. He told Ms. Lord that he would notify a crew from the City to inspect the subject tree. It was clear from the evidence that the discoloration was not easily noticeable. [ 13 ] Ms.

Lord was unable to say when this conversation took place, other than it was a number of months before May 2014. I was left with the impression that Ms. Lord could not recall, with any degree of certainty, how close her conversation with the City worker took place to May 2014. [ 14 ] Under cross-examination, Ms. Underhill agreed that she did not make any notes of her conversation with the City worker, nor did she follow up with the City after the conversation. [ 15 ] Cabot Lyford (“Mr. Lyford”), who has been working as an Arbor culturist Technician with the City for almost 20 years, gave evidence.

He explained the City’s tree inspection system. There are about 40 individuals in the group, and the trees which are inspected do not include those in City parks. There is a physical inspection done by the workers who are pruning trees, and a drive-by inspection, so that each tree is inspected approximately once every 8 years. [ 16 ] Written notes are made regarding the inspection, which are inputted into a database. Some of the records formed part of the evidence. These record the incidents that occurred at the subject property and in the neighbourhood. [ 17 ] Mr.

Lyford explained that when a tree is identified as damaged, there is a complete inspection and, if required, remedial work is undertaken. When a tree is dead or nearly dead, it is removed. Based on the inspection system, the superintendent will prioritize the maintenance that needs to be done. [ 18 ] Mr. Lyford confirmed that there was light precipitation and moderate wind on the day of the incident. However, there is no suggestion that the weather caused the branch to fall. [ 19 ] Under cross-examination, Mr.

Lyford agreed that unless a tree was inspected using a lift to inspect the tree from above the ground, some difficulties with a tree may not be noticed as a result of a drive-by inspection. [ 20 ] The City also called Harry Kettmann (“Mr. Kettmann”). He has been working as an Arborist with the City since 1991. He has taken many courses over his years of experience about hazardous tree evaluation and is current with all of his training. [ 21 ] Mr. Kettmann does not recall the subject tree by address, but does by sight and recollection from the records. He was aware of

an October 2011 incident at West 24 th . [ 22 ] He explained that he used a hoist with a bucket to look at the tree. He does not remember if he noticed any discoloured area upon his review of the photographs in evidence, but said that he does not deviate from proper inspection procedures. [ 23 ] I have concluded that if there were any structural integrity issues, Mr. Kettmann would have noted those concerns in his written records. He testified that he looked for weak crotches, which is the area where branches shoot in different directions. [ 24 ] Mr. Kettmann looked at the photograph(

s) in Exhibit 1. He explained that the discoloration appeared to be noticeable only from the inside of the tree and, therefore, he could not provide an opinion as to the condition of the tree from an outside inspection. [ 25 ] Under cross-examination regarding the October 2011 issue, Mr. Kettman explained that he carried out a general inspection, looking for dead wood and other noticeable defects. At that date, he was not aware of any previous inspections. [ 26 ] Also, he said that if an individual or a City worker advised the City that there was a damaged tree, it would be inspected.

In addition to the ground inspection, he explained that all of the crew carries binoculars to assist them. [ 27 ] Also, under cross-examination, Mr. Kettman reiterated that the discoloration in the photograph(

s) would not necessarily be noticeable from the outside of the tree. He said that the discoloration looked as if it was organic material and not decay. [ 28 ] Mr. Kettman admitted that he did not inspect the tree in May 2014. Statutory Framework [ 29 ] The authority for the City to maintain the trees arises from Vancouver Charter , S.B.C. 1953, c. 55,

Part VIII – Public Works,

Section 291, as follows: Counsel powers in relation to streets and other matters 291. The Council may provide … Ornamental trees (

k) for regulating and planting and care of shade or ornamental tress upon a street, and for prohibiting injury or destruction of such trees; Their trimming (

l) for causing any tree upon a street to be trimmed or removed when deemed necessary in the public interest; [ 30 ] The City has passed Street Tree By-Law No. 5985, which is as follows: BY-LAW NO. 5985 A By-law to regulate trees on boulevards within City streets [Consolidated for convenience only, amended to include By-law No. 10642, effective January 29, 2013] THE COUNCIL OF THE CITY OF VANCOUVER, in open meeting assembled, enacts as follows: 1. This By-law may be referred to as the “Street Tree By-law”. 2. In this By-law and unless the context otherwise requires, the following definition shall apply: (

a) Boulevard means (

i) on a street with curbs, the portion of the street between the outside curb and the adjoining property line; and (ii) on a street without curbs, the portion of the street between the roadway shoulder and adjoining property line; and (iii) on a street where traffic is segrated (sic) by means of a median, includes the median. (

b) City Engineer means the City Engineer of the City for the time being; (

c) General Manager means the general manager appointed as such by the Board of Parks and Recreation; (

d) Street Tree means any tree located in the boulevard of any City street. 3. All trees located in any boulevard of the City shall be deemed to be the property of the City, and the care, custody and control of such street trees shall be with the Board of Park and Recreation. 4. No person other than the Board of Parks and Recreation shall plant any tree in any boulevard without first having obtained the written permission of the City Engineer.

5. The General Manager shall not permit the planting of any tree in a boulevard except in compliance with standards set by the CityEngineer and the General Manager. 6. No person shall remove, destroy, cut, deface, trim or in any way injure, impair or interfere with any street tree except as expresslyauthorized to do so by the Board of Parks and Recreation or, in the case of cutting or trimming, if carried out by a qualified private treecompany which holds a valid permit therefor from the Board of Parks and Recreation. 7.

No person shall place any building material or other similar thing against a street tree without first installing a proper guard toprevent injury to the tree. 8. No person shall attach a wire, rope, nail, poster, or any contrivance to any street tree. 9. The General Manager may remove from any street tree any wire, rope, nail, poster, or any contrivance that may, in the GeneralManager’s opinion, damage the tree. 10. The Board of Parks and Recreation may destroy, remove, transplant or otherwise dispose of any street tree or shrub on anyboulevard: (

a) if, in the opinion of the General Manager, such tree or shrub constitutes a hazard to life or property and is a public nuisance; or (

b) if such tree or shrub is infected by disease or injurious insects; or (

c) if, in the opinion of the General Manager, such tree or shrub is planted so close to another tree that it impedes the proper growthof the other tree; or (

d) for any other good reason which the General Manager or the City Engineer may deem proper. 11. Every person who violates any provision of this By-law, or who suffers or permits any act or thing to be done in contravention orin violation of any of the provisions of this Bylaw, shall be deemed to be guilty of an offence against this By-law. 12. Every person who commits an offence against this By-law is liable to a fine and penalty of not more than $10,000.00 and not lessthan $250.00 for each offence. 13. By-law No. 940 is repealed. 14. This By-law comes into force and takes effect on the date of its passing.

DONE AND PASSED in open Council this 8th day of April, 1986. (signed) “Michael Harcourt” Mayor (signed) “Maria Kinsella” Deputy City Clerk The Law [31] The time I permitted the parties to make submissions was limited due to the scheduling of other cases on the night of thehearing. [32] Ms. Lord prepared a written argument, and submitted that everything that needed to be emphasized was set out in the argument. [33] Ms. Lord relied upon the Gascho v. Clinton (Town), [2001] O.J. No. 4504, a decision of the Ontario Superior Court of Justice.

Pickell Deputy J. summarized the law in Ontario, which began with the 1926 Ontario Court of Appeal decision in Huestis v. City ofToronto, (ON CA), [1926] 3 D.L.R. 142. [34] Mr. Nakanishi provided a Brief of Authorities. He relied upon the principles set out in Fox v. Vancouver (City) 2003 BCSC1492 at paras. 19 and 20 and Insurance Corp. of British Columbia v. Vancouver (City) [1997] B.C.J. No. 1272, (BCSC). [35] I take from the case law cited by the parties that I need to consider the following: (

a) Was there anything to warn the City of any danger with the subject tree? (

b) While there may have been no visible sign of decay in the subject tree (i.e. the drive-by visual inspection), such that thediscoloration and the size of the discoloration was not noticeable in the tree, was there sufficient warning as a result of the incidentdescribed by Ms. Underhill in her evidence to warrant a more thorough inspection? (

i) Is the tree policy of the City bona fide in the exercise of a discretionary power? (ii) If so, is a bona fide exercise of the City’s discretion based upon social, political and economic factors and not with a view ofabsolving itself of liability (as paraphrased from Fox, para. 19)? (

d) Was the actual inspection of the trees by the City a proper discharge of the duty of care owed by the City in all the circumstances

(which include budgetary and manpower considerations) to ensure that the condition of the trees, generally, were properly maintained (paraphrased from Fox , para. 20 )? Discussion [ 36 ] The City records indicate the following: (

a) On or about October 18, 2011, the City performed its most recent inspection of the subject tree, which did not reveal the existence of any hazard or defect and indicated that the subject tree appeared to be in good condition. (

b) On or about July 18, 2013, the City performed its most recent annual inspection of the 3200 block West 24 th Avenue, Vancouver, BC, including the subject tree, which did not indicate the existence of any hazard or defect based on a “drive-by” inspection. (

c) Until the May 23, 2014 incident which led to the damage of the Claimant’s car, the City had not received a service request regarding the subject tree. [ 37 ] The City manages and maintains 143,000 street trees. The tree policy provides that an inspection of each tree every 8 years is reasonable, bearing in mind the availability of tax revenue (i.e. budgetary constraints) balanced against the likelihood of trees being identified to be remediated more frequently. [ 38 ] Mr.

Nakanishi argued that the above balance between the frequency of inspection, which policy will be based upon scientific principles, and budgetary constraints, i.e. the taxes paid by the residents of the City for services provided by the City is reasonable. Ms. Lord did not disagree, at least to my understanding, that the balancing by the City is a factor that I am to consider to assess the reasonableness of the tree policy. [ 39 ] I have concluded that the tree policy is a bona fide and reasonable exercise of the City’s power. It is not a policy that was intended to absolve the City from negligence, per se .

Rather, as in Fox , the policy provides a defence for the City. Furthermore, I conclude that the City discharged its appropriate standard of care based. [ 40 ] Accordingly, the claim is dismissed, without costs. __________________________ Lawrence A. Kahn Adjudicator