Sounds like a typical law school fact pattern for a tort case.
A property owner retains an arborist to do a routine pruning job on a set of Norwich Maple Trees in his yard.
The arborist advertises that he is both “licensed” and insured.
Upon attending at the job site, the arborist begins to unload his equipment from his van. It includes all of the normal stuff which any arborist would carry: spikes for climbing trees, ropes, counter weights, pylons and chain saws etc. But is also includes something which you shouldn’t find on any job site; an open container of alcohol; in this case a tall boy of beer.
Having an open can of beer may not seem like a big deal. The general labourers there to help the arborist tell the property owner that having a beer on the job site isn’t a problem; and that they do it all the time. They tell the property owner that this is just the way that the licensed arborist works. He needs beer to concentrate and do his job. They are trying to pass this off like it’s all normal.
The notion that a man climbing 20+ feet in the air; with a large gas powered chainsaw; needs to be fueled by alcohol isn’t normal whatsoever.
Yet, this is what the arborist and his friends tried to convey to the property owner.
In case you are wondering, that property owner was me. And I’m a personal injury lawyer. And I wasn’t having anything of it.
So, what does one do when confronted by a man with a chainsaw who seemingly needed beer to function while high up in a tree?
One of the rules in life is never to argue with a seemingly drunken arborist carrying a chainsaw. You explicitly state that you are not comfortable with him climbing your trees and politely ask him to leave the property. When he protests and calls you names and begins cursing at you; keep in mind that he has a chainsaw at his disposal. Bite your tongue and walk away. Go inside and lock the door. And begin to pray.
Thankfully, this was the end of the awkward interaction. Nobody got hurt and no trees were pruned that day.
But what happened if someone got hurt? What would happen if the seemingly drunken arborist feel down from the tree on private property?
Would WSIB kick in to pay for the injured arborists benefits and lost wages?
Would the arborist have a cause of action against the property owner for having fallen down at his property?
What rights, if any, does the private property owner have against the arborist?
Would the private property owner’s property insurance kick in to defend a potential claim?
Either way you cut it, having to defend an action; whether the action has merit or not; is a pain for the Defendant property owner.
The risk is that my own insurer may NOT cover me if they concluded that I knew or ought to have known that the arborist was not qualified to do the job. That’s a fight I would rather not have to take on against my own insurer. It will be painful and costly. It might be a fight I would not win. In that case, I would have to pay out of pocket to defend the arborist’s claim against me, and have to pay out of pocket for any potential judgment.
In my view the arborist’s claim is a weak one for a variety of reasons:
- Drinking on the job
- Advertising that he is “licensed” when in fact there are no licenses for arborists in Ontario (more on that later)
- Arborist advertises that he is insured. His insurance should kick in on such a claim
- Arborist is in the course of his employment on the job. This is a WSIB claim and not a civil lawsuit. WSIB should cover it and have the claim kicked out of Court.
- Why are we drinking while operating heavy machinery which has the potential to dismember you or kill?
- How on earth is this normal?
I was rather upset and unsettled after this happened. It was a very awkward and frankly scary interaction. I had not paid the arborist at all so I haven’t sustained any sort of financial loss. But I was shaken up to say the least, and my trees didn’t get pruned.
So what’s a personal injury lawyer to do?
The first thing I did was look in to the licensing of arborists in Ontario. I fell down the rabbit hole of unqualified arborists in Ontario. I found the following headlines:
Arborists can get certified by the International Society of Arboriculture (Ontario Chapter). But they are not licensed. It’s an unregulated trade.
When you find an arborist who is certified, they will advertise that they are certified.
In spite of this, many arborists advertise that they are “licensed“. But when you ask who licenses them, they won’t be able to give you a straight answer because there is no licensing body to become an arborist. There is only a certification program offered.
Does this pose a problem for the general public and property owners who think they are hiring professional arborists; when in reality they are just hiring a guy with a truck, some rope and a chainsaw? Absolutely!
Possibly the worst thing that can come of this to a private property owner is someone gets seriously injured; and the property owner’s insurance denies the claim or denies defending a potential claim because the property owner hired someone who they knew or ought to have known was not qualified to do the job.
I hope that none of you have to experience what happened to me. But just in case you do, try not to argue. Remember one of life’s most valuable lessons: Don’t argue with a guy carrying a chainsaw.