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“Life Is Hard for City Trees” – Law Society Battle Over Tree-Cutting Has “Avatar”-Like Vibes

Written by Russell Alexander / (905) 655-6335

For those who’ve been to the movies lately, you’ll know that the sequel to James Cameron’s 2009 epic science fiction film “Avatar” has finally hit the theatres. With the title “Avatar: The Way of Water”, the 2022 sequel is a graphically beautiful 3-hour journey, full of stunning imagery and visual metaphors. 

One of the core images of both films is the tall, willow-like Tree of Souls. According to the fan-site, it’s the sacred site for the Omatikaya Na’vi clan, and is their closest connection to Eywa (or “Great Mother”, the guiding force of life). One of the main points of conflict in the first film especially, is between the Na’vi and the human military, who intend to destroy the Tree of Souls with a massive bomb.

Well, the Law Society of Ontario is waging its own battle over trees – but this time it’s a legal rather than spiritual one.   

The battle is with Metrolinx, which is the provincial agency tasked with expanding the Toronto Transit Commission subway line.   Some of Metrolinx’s work is on the historic downtown Toronto site that houses the venerable Osgoode Hall, as well as the Ontario Court of Appeal, the Superior Court of Justice, and the offices of the Law Society itself.  The property is also home to 11 mature trees, on a strip that Metrolinx expropriated to facilitate the subway expansion.  

When Metrolinx started cutting down the trees, the Law Society took legal action.  On Sunday February 5, 2023, it obtained a court-ordered injunction, temporarily halting work. This was after its lawyers requested urgent hearings in the days leading up. 

Since then, various requests for injunctions and extensions have been heard by three levels of Ontario court, and the removal process has stopped and legally re-started several times.   At the time of writing, five of the trees have already been taken down, four have been heavily pruned, and two are still untouched.

The final outcome of those numerous proceedings has yet to be determined, but in the meantime they offer an interesting glimpse at how urban landscaping works.  For example, one of the injunction applications was brought by the Haudenosaunee Development Institute (HDI), which is an Indigenous group.  They had asked Metrolinx to be compensated for the tree removal, asserting that their treaty rights and interests were being impacted.  They wanted work to cease until their dispute with Metrolinx could be resolved.

In a February 10, 2023 ruling that rejects HDI’s injunction request (which decision is now subject to an appeal scheduled for February 20, 2023), the court noted HDI’s assertions that the contentious trees are 200 years old.  But according to the Curator of the Law Society, they are actually much younger than that, with most being planted after 1965.  As the court explained: 

The trees are the dominant feature of the grounds and have been the greatest source of garden expenses for the Law Society. Contrary to popular belief, few if any of the trees go back further than World War Two, and there has been a lot of turnover over the years. Life is hard for city trees. Many of our trees, including the lindens, honey locusts, and flowering crab apples, date from 1965, and as time goes on, the tree cover will continue to change. Our current replacement policy favours native species such as the red oak, the Eastern white pine, the American beech and the hop-hornbeam.

In any case, the court added, Metrolinx is contractually-obligated to replace any trees it cuts down. In terms of the environmental and archeological impact of the construction project, Metrolinx has also commissioned numerous reports and studies, and has engaged extensively with various stakeholders along the way.  These included HDI itself, and other Indigenous groups such as Six Nations of the Grand River. 

It’s an interesting legal issue, and perhaps an environmental, cultural, and historical one as well.  Many interests and obligations are yet to be untangled … just like tree roots.

Full text of the decisions:

Law Society of Ontario v. Metrolinx, 2023 ONSC 1169   

Haudenosaunee Development Institute v. Metrolinx, 2023 ONSC 1170 (CanLII) 

Development Institute v. Metrolinx, 2023 ONSC 1170 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.