Dear Editor:
I have heard a number of reports regarding the cost of the clean-up in Toronto after the ice storm, and I find it curious that the City is including the "replanting of trees" in those costs. It may be an idea for all property owners who had trees come down on their property to do complete title searches to find out if in fact the trees that did come down, where on their property or the property of the City.
The reason for this is that many property owners are concerned, not only about the costs of this replanting, but future problems with branches and trees coming down again causing the same problem all over again.
Section 141, of the Municipal Act (not the City of Toronto Act), authorizes municipalities to plant trees along road sides and with the consent of private property owners, to plant trees on private property. I would presume that the City of Toronto Act would have the same requirement. This section contains the provision that consent must be obtained from the private property owner for the municipality to plant trees on private property. It stands to reason and historical documentation that the municipality does not have the authority to implement “tree planting” on private property without having entered into agreements with the private property owner.
Under the general Municipal Act, if a Municipality hasn't jurisdiction to plant trees on private property which are situate "within the geographical boundaries" of the municipality, why would any council conceive they have the authority to regulate, by means of by-law, private trees? The other sections that a municipal council must pay attention to are: 10 (2.4), 11 (2.4), 14, 15, 19, 62, 135, 141, 394 (e), and 461of the Municipal Act (one would have to look into the City of Toronto Act), sections 11 and 12 of the Forestry Act, sections 57 and 58 of the Public Lands Act, the Free Grants and Homestead Act, 1868, the Constitution of 1792, the Letters Patent, section 92.5 and section 109 of the British North America Act, 1867 of our present constitution.
Under the Municipal Councillors Guide, 2010, it is the responsibility of Municipal Councillors to know and understand all of these documents and staff is not to give legal advice when making recommendations to council. I hope this clears up any confusion as to the limits of the council's authority over public v. private property. Perhaps the City council should listen to the private property owner, particularly when 87% of the land, within the geographical boundaries of Ontario, is public/Crown land with ample tree top coverage and that there is no need for this type of intrusion onto someone's private property causing future costs and electrical down time problems caused by falling trees.
Elizabeth Marshall
Director of Research Ontario Landowners Association
President All Rights Research
Director Canadian Justice Review Board
Associate Research Fellow – Meighen Institute for Public Affairs
I am not a lawyer and do not give legal advice. Any information relayed is for informational purposes only. Please contact a lawyer.
