February 4, 2025
If you live in Northwestern Ontario, as we do, you are surrounded by trees. They seem to be everywhere. Forestry remains a dominant industry even as mining grows.
So, not infrequently, we face cases involving improper removal of trees, or damage to trees. Which raises the question that I ask my Remedies students at the Bora Laskin Faculty of Law- what is a tree worth?
There is no one universal approach to valuing trees, so they provide a useful entry point to appreciating the variety of approaches to damages. Like most things in law, the result depends 90% on the facts and only 10% on the law.
The basic principle is that the owner may recover the diminution in value of the property. If that is hard to prove, a court may simply award an amount that is reasonable, fair and practical in the circumstances. Courts do not usually want wrongdoers to go unpunished.
If the trees have commercial value, the damages are the value as timber, perhaps net of harvesting costs (that is, lost profit) if the wrongdoing was innocent, such as accidentally crossing a boundary line.
Even if the trees have no commercial value, damages may be awarded.
If the value of the trees is aesthetic, courts will often award the cost of replanting the trees, even where that exceeds the diminution in the value of the land. In other cases, the damages are for the loss of enjoyment of the trees, as aggravated or general damages. The latter usually happens where the cost of replanting greatly exceeds the measurable loss.
Where the damage is done maliciously or in a high-handed fashion, punitive damages may be awarded. These are set at an amount that will deter people from repeating the wrongful conduct.
Another punitive option is restitutionary damages, in the form of a requirement that the wrongdoer disgorge their profits from the incident.
At the other extreme, if the trespass is accidental and minor- what is known as a “technical trespass”- nominal damages may be awarded. This acknowledges that a wrong was done to the owner, without unduly punishing the trespasser.
In between is the possibility of a “license fee” where there is no harm, but the trespasser has achieved a benefit as a result of their wrongful act, such as saving money on construction.
If the wrongdoing is ongoing, an injunction may be obtained to prohibit further harm.
WHAT WEILERS LLP CAN DO TO HELP YOU
We know trees.
We know damages.
We know injunctions.
We know how to conduct lawsuits about trees.
If you have an issue about trees, and think you might need a lawyer, give us a call and see if we are the right lawyers for you.
(This web article relies heavily on the approach taken in Cassels and Adjin-Tettey, Remedies: The Law of Damages, third edition, Irwin Law 2014, at pp. 90-91, the textbook used in the Remedies course. This article is written for a general audience and any errors are this writer’s, not that of the text.)