Casual legal: legal risks of neglected public trees

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated. 

By Sabrina Kuckertz 

Reynolds Mirth Richards Farmer LLP 

Alberta Municipalities Casual Legal Service Provider  

As November comes to an end, the leaves have finished falling – but what happens if a tree located on municipal land follows their lead? 

Pursuant to s. 532(1) of the Municipal Government Act (“MGA”), municipalities are responsible for ensuring that every road or other public place that is subject to the municipality’s direction, control and management is kept in a reasonable state of repair. If a municipality fails to perform its duty and knew or should have known of the state of repair, the municipality is liable for damages caused (see s. 532(2) and (6) of the MGA). 

If a tree falls and causes injury, the starting point is ownership of that tree: if the trunk is rooted on municipal land, the municipality owns the tree. The next step in the analysis is whether the municipality knew (or should have known) that the tree was dangerous. Was there visible decay, dead branches, prior complaints made about the tree? If so, that could establish that the municipality knew (or should have known) the risk. 

Section 533(b) of the MGA provides some protection to municipalities as it prohibits the finding of liability in relation to a tree if it is located off the “travelled portion of the road.” However, Alberta courts have interpreted these exemptions narrowly. 

Therefore, to reduce risks of liability, it is best for a municipality to adopt proactive measures, which can include the following: 

• Keep detailed records of inspections and maintenance actions for public trees;
• Encourage residents to report hazardous trees; and
• Implement policies and procedures to ensure that if potentially unsafe trees are reported or come to the municipality’s attention, there is an adequate and timely response.  

If you have any questions about municipal liability for public trees, please contact our team for more information. 

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1.800.661.7673 or email casuallegal [at] abmunis.ca (casuallegal[at]abmunis[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] abmunis.ca (riskcontrol[at]abmunis[dot]ca), or call 310.MUNI (6864) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.