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Trespass to Property: The Wrongful Interference with Land Including Things Affixed Thereto
Question: What are the legal implications of trespassing on someone’s property?
Answer: Trespassing is not just a criminal offence but also a civil tort under the Trespass to Property Act, R.S.O. 1990, c. T.21. It addresses both intentional and accidental intrusions, making it crucial for property owners to understand their rights. Freed Legal Services LLP can assist you in navigating these complexities, ensuring you receive the support needed in any trespassing situation.
Protections Against Property Interference
The term trespassing is well understood in relation to criminal law such as where an intruder breaks and enters into a home or other building; however, the term trespassing also relates to civil law tort as well as a prosecutable provincial offence violation. As a prosecutable provincial offence, trespassing is addressed within the Trespass to Property Act, R.S.O. 1990, c. T.21 and, in some circumstances the Criminal Code of Canada, R.S.C. 1985, c. C-46 where the trespass occurs as a break and enter to commit a crime. As tortious conduct in the civil law realm, which may arise in combination with trespass as a provincial offence or criminal charges, but may arise without such other issues, trespass is very broadly applicable to situations where an interference by presence upon land occurs and could, technically, arise any time an uninvited person enters upon the land without permission.
The Law
The Court in Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, set out a straightforward explanation of tortious trespass, by noting:
[52] With respect to the claim of trespass to land Lederman J. in Hudson’s Bay at para. 9 states as follows:
Clerk and Lindsell define trespass to land, at p. 837, as consisting of “any unjustified intrusion by one person upon land in the possession of another”. Halsbury’s, Vol. 45, para. 1384 states that “every unlawful entry by one person on the land in possession of another is trespassed for which an action lies…
[53] The elements for the claim of trespass to land are set out by Crane J in Grace v. Fort Erie (Town), 2003 CanLII 48456 (ON SC), [2003] O.J. No. 3475 (SCJ) at para. 86:
The elements of trespass have been described as follows:
- Any direct and physical intrusion onto land that is in the possession of the plaintiff, (indirect or consequential interference does not constitute trespass).
- The defendant’s act need not be intentional, but it must be voluntary.
- Trespass is actionable without proof of damage.
- While some form of physical entry onto or contact with the plaintiff’s land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto the plaintiff’s land can constitute trespass.
Trespass to property, also known as trespass to land, can arise in deliberate ways or by accident. In Gross v. Wright, [1923] S.C.R. 214, the trespass was intentional, involving an attempt to claim a neighbour’s space. By contrast, trespass may also occur innocently, such as when a boundary is crossed unintentionally, as illustrated in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where a neighbour’s trees were mistakenly removed.
Damages for Trespass
The amount of damage from trespass can be hard to measure. When a trespass happens without causing real harm, deciding on fair compensation can be problematic, and courts usually grant only a nominal award. The Court of Appeal reviewed this issue thoroughly in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, highlighting the challenge of proving damages precisely and stating:
[61] It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence. Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases. The controlling principles were clearly expressed by Finlayson J.A. of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 112 O.A.C. 138, at para. 75, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 516:
I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.
See also Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 CanLII 705 (SCC), [1999] 1 S.C.R. 142, at para. 99; 100 Main Street East Ltd. v. W.B. Construction Ltd. (1978), 1978 CanLII 1630 (ON CA), 20 O.R. (2d) 401 (C.A.), 88 D.L.R. (3d) 1, at para. 80; Penvidic Contracting Co. v. International Nickel Co. of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267, at pp. 278-79.
Conclusion
The law of trespass to property applies broadly. As a strict tort, responsibility can arise even where the trespass was unintentional. In situations without bad intent or real damage, only small damages are expected. Yet, there are cases where an accidental trespass has led to major consequences.