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Trespass to Property: The Wrongful Interference with Land Including Things Affixed Thereto
Question: What are the legal repercussions of trespassing on someone else's property?
Answer: Trespassing is viewed both as a civil tort and a criminal offence under the Trespass to Property Act, R.S.O. 1990, c. T.21, and may also fall under the Criminal Code of Canada, R.S.C. 1985, c. C-46. This means that unauthorized entry or interference with someone's property can lead to claims for damages or criminal charges. If you find yourself dealing with a trespassing issue, Lynxs Paralegal can offer guidance tailored to your situation, helping you navigate the complexities of the law effectively.
Protections Against Property Interference
Trespass usually brings to mind crime; think break & enter, but the law treats trespass to property as both a civil tort and a prosecutable offence. On the offence side, trespass is addressed in the Trespass to Property Act, R.S.O. 1990, c. T.21, and, where appropriate, the Criminal Code of Canada, R.S.C. 1985, c. C-46. On the civil side, trespass to property is expansive, capturing presence on and interference with the land owned or in the possession of another person without consent or, even with invitation, oversteps the permission or uses the land in an unauthorized manner.
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 land may happen both deliberately and accidentally. A deliberate example comes from Gross v. Wright, [1923] S.C.R. 214, where one party tried to seize space from a neighbour. Trespass can also happen by mistake, such as crossing a property line without realizing, as occurred in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where trees belonging to a neighbour were cut down by mistake.
Damages for Trespass
Figuring out the exact harm caused by trespass is often tricky. Sometimes, in cases of technical trespass where no real damage occurs, finding the right remedy can also be difficult. In those situations, courts usually award only a token amount. The Court of Appeal explored this issue of trespass damages in detail in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, noting, among other things, the challenge of proving damages with precision 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
Trespass to property covers a very broad range of situations. Since it is treated as a strict tort, liability may arise even for a mistake. When the trespass involves no improper purpose and no harm, courts generally award only a token sum. Nonetheless, innocent trespass can still cause serious harm in some cases.
