City of Abbotsford not liable for damage caused by tree falling on resident's trampoline: CRT

A backyard trampoline is shown. (shutterstock.com)

If a tree falls on your trampoline and you didn't complain to the City of Abbotsford about it beforehand, is the city still liable?

It's not an abstract question of philosophy, but the central question asked and answered in a case recently decided before B.C.'s Civil Resolution Tribunal.

The answer, according to tribunal vice chair Eric Regehr, is no. The city is not liable.

Homeowner John Camarda took the city to the CRT seeking the maximum of $5,000 in compensation for the cost of repairing a fence and replacing a trampoline that were damaged when a tree fell on his property in November 2022.

According to Regehr's decision, which was posted online Tuesday, there was no dispute that the tree fell, nor that it was owned by the city. 

Camarda did not specify the legal basis for his claim in his CRT application, but the city submitted – and Regehr agreed – that the two possible grounds for Camarda's claim were negligence and nuisance.

In response to the negligence allegation, Abbotsford invoked a legal concept known as the "policy defence."

"The policy defence essentially says that governments cannot be held liable in negligence for 'core policy decisions' because they do not owe a duty of care to citizens for policy decisions," Regehr's decision reads.

"The reason this principle exists is that governments must make difficult public policy choices, and it is not the court’s (or the CRT’s) job to judge those choices. Instead, voters judge government policy choices through elections."

The city told the tribunal it has a primarily "reactive" tree management policy, which it was applying when it failed to proactively remove the tree that ultimately fell on Camarda's property.

Abbotsford has hundreds of thousands of trees, and it only actively monitors about 13,000 of them, generally because of past incidents or identified risks, neither of which were present in the case of the tree that fell on Camarda's property, according to the decision.

Regehr accepted that the city's decision not to monitor every tree it owns was a core policy decision.

"The policy is based on budgetary constraints, and high-level employees set the budget through a deliberative process," the decision reads.

"This means Abbotsford owed the applicant no duty of care. Abbotsford can only be liable for a policy decision if the policy itself was irrational or made in bad faith. There is no evidence that any of this is the case. There is also no evidence that Abbotsford failed to properly implement the policy in its handling of the tree. I therefore find that Abbotsford is not liable in negligence for the fallen tree."

Similarly, though a party does not have to owe a duty of care in order to be held liable for nuisance, Regehr found there was no basis for the nuisance allegation either.

To prove nuisance, Camarda would have had to show that the city either knew or ought to have known that the tree was likely to fall, according to the decision.

"There is no evidence here that anyone had complained about the tree or that there had been previous trees falling in the area," the decision reads. "So, Abbotsford did not know and had no reason to know that the tree might fall. This means Abbotsford is not liable in nuisance."

Accordingly, the tribunal member dismissed Camarda's claim. Regehr made note, however, that there was nothing stopping Camarda from bringing a new claim against Abbotsford regarding any damage caused by a second tree that fell in November 2023.