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Trespass to Property: The Wrongful Interference with Land Including Things Affixed Thereto
Question: What legal protections exist against trespassing on private property?
Answer: Trespassing is both a civil tort and a criminal offence in Canada, which gives property owners the right to seek remedies under the Trespass to Property Act, R.S.O. 1990, c. T.21 and relevant case law, ensuring that even unintentional intrusion can have legal consequences.
Protections Against Property Interference
Most people associate trespassing with criminal law, like a break & enter; however, trespass to property is also a civil tort as well as a prosecutable offence. As a prosecutable offence, trespass to property is addressed by the Trespass to Property Act, R.S.O. 1990, c. T.21, along with the case law, and in some situations the Criminal Code of Canada, R.S.C. 1985, c. C-46, depending on the circumstances. As a tort, trespass to property is broad and covers being on and interfering with the land of another person; and the tort of trespass can arise whenever a person enters land without permission, or, even if invited, goes beyond what was permitted or uses the land in an unauthorized way.
The Law
Guidance on what qualifies as tortious trespass is outlined in the decision of Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, where it was stated:
[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.
As indicated, the tort of trespass to property, or as is also commonly referred to as trespass to land, may occur intentionally such as occurred in the case of Gross v. Wright, [1923] S.C.R. 214 which involved an effort to steal the space of an adjacent neighbour or the tort of trespass to property may occur in innocent and accidental ways such as where a property owner unintentionally crosses property boundaries without any illicit purpose as occurred in the cases of Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where trees owned by a neighbour were mistakenly cut down.
Damages for Trespass
Assessing damages for trespass can sometimes be difficult, especially when there is little or no actual harm. In cases of technical trespass with no real loss, courts often award only a nominal sum. The Court of Appeal examined these challenges in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, where the Court commented on the difficulty of proving damages with certainty and stated:
[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.