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Trespass to Property: The Wrongful Interference with Land Including Things Affixed Thereto
Question: What legal protections exist against trespassing in Ontario?
Answer: The protections against trespassing are outlined in the Trespass to Property Act, R.S.O. 1990, c. T.21, which details the civil tort of trespass along with corresponding case law. Trespassing can occur both deliberately and accidentally, covering actions such as unauthorized entry onto another's land or causing interference with their property. The courts have established key principles regarding damages linked to trespass, highlighting that legal recourse may be pursued even without proof of damage. For assistance navigating these legal matters, Benchmark Legal Offices is here to help you understand your rights and options.
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
In Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, the Court explained the meaning of tortious trespass, stating:
[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.
The tort of trespass to property, often called trespass to land, can happen on purpose or by accident. An intentional example appears in Gross v. Wright, [1923] S.C.R. 214, which involved an attempt to take over a neighbour’s space. Trespass can also happen innocently, such as when a property owner crosses a boundary without intending harm, as seen in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where trees on a neighbour’s land were mistakenly cut down.
Damages for Trespass
In many circumstances calculating the extent of harm caused by a trespass may be difficult. In other circumstances, involving a technical trespass without any corresponding harm, an appropriate redress for trespass is also troublesome. Generally, where trespass occurs without harm, a very nominal sum may be awarded. On the issue of trespass damages, the Court of Appeal addressed such at length within the case of TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1,wherein, among other things, the difficulty to prove damages with exactitude was mentioned and it was 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 tort of trespass to property is extremely broad in potential application. As a strict tort, liability for trespass may occur even when the trepass was accidental; however, in the absence of illicit intentions or harm, it is anticipated that such an innocent trespass would yield very little damages. With such said, sometimes an accidental trespass without illicit intentions may still result in significant harm.
