Documentation:Torts/Intentional interference with land

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Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
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Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
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Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
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Index
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Intentional interference with land
The tort of intentional interference with land, more commonly called trespass to land, addresses wrongful actions that interfere with a person's possession of land.[1] Under this tort, an individual may be found liable for entering or interfering with another person's land without lawful justification, permission, or right.[2]

Trespass to land

Elements of trespass to land

"Trespass occurs when a person enters the premises of another without lawful authority, including when a person enters by licence or permission but with a purpose contrary to the exclusive purpose of the licence or in a manner contrary to the terms of the licence."[2]

Elements of trespass to land[3]
1. The intrusion onto the land must be direct
2. The interference with land must be intentional or negligent; and
3. The defendant’s interference with the land must be physical.

Direct

The first element requires that the intrusion be direct as opposed to consequential.[4] Some cases where the court has found conduct to be insufficiently direct have included "if time and weathering caused a fence to marginally lean over a boundary line" and if "an explosion off the plaintiff’s property that causes damage to his or her property by the resulting vibration".[5]

Intentional

Although trespass to land is sometimes described as entailing either intentional or negligent conduct, "[i]n practice, the requirement ... is limited to intentional interference as negligent interference is normally pleaded in the tort of negligence."[6]

Intentional in this context "does not mean that the defendant intended to do a wrongful act against the plaintiff, but that the defendant completed a voluntary and affirmative act."[6] This is to say, even if a defendant walks on their neighbour's land while honestly believing it is their own, they may be liable in trespass.[7] Conversely, "if person A is carried against his will by person B onto the plaintiff’s land, A is not liable for trespass as his act was not voluntary".[8]

Physical

To show there was physical interference, the plaintiff must show "that the defendant themselves must have physically interfered with the property or caused some physical object to be placed on the property."[6] Examples that have been recognized by the court as trespass include placing a coyote carcass on the plaintiff's truck, cutting the plaintiff's lawn, and removing survey stakes along the boundary line between the defendant's and plaintiff's lawns.[9] However, "fumes, smoke, noise, or odour do not fall within trespass,"[6] but my instead be actionable in nuisance.

Other considerations

Actionable per se

"[T]respass is actionable per se".[10] This means that it "does not require proof of damage in order to be actionable".[11]

Limits on state power in Entick v. Carrington
This History Hub video provides a summary of the case.[12]

Without lawful authority

Despite "unlawfully" or "without lawful authority" often being included in the definition of trespass to land,[2][11] lawful justification is best understood as operating as a defence to claims of trespass. Per Entick v. Carrington:

"[E]very invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him."[13]

This means that there is a presumption of trespass, placing the onus on the alleged wrongdoer to raise a defence, such as lawful justification.[13] Demonstrating such lawful justification is a complete defence against the tort and would prevent the plaintiff from seeking damages. However, permission to enter land that is obtained by "threat, fraud, trickery, or artifice [is] no permission at all".[14]

Implied Licence

In R v. Evans, the Supreme Court of Canada held that "the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock."[15]

However, as the Saskatchewan Court of Appeal explained in R v. Singer:

[A] police officer who is approaching the door of a residence for the purpose of gathering evidence against the occupant is an intruder...because an unlawful search is not lawful police business. The fact that they have entered to investigate a crime does not save the day if they intend to investigate in that prohibited manner. Further, if the implied licence did not authorize the police entry – absent any justification based on statutory authority or police ancillary powers – the police are trespassers as soon as they enter the private property...[16]

In R v. Singer, the court found that police had entered the front of Singer's property to collect evidence related to a potential criminal charge against Singer.[17] In this case, the court found that there was no implied licence because "Singer cannot be presumed to have invited the police to enter the driveway for the purpose of collecting evidence to enable them to substantiate a criminal charge against him."[18] Thus, the police were trespassers.[18]

Continuing trespass

Defendants may also be liable for continuing trespass "if the interference is not dealt with by the defendant".[19] For example, in Fitzpatrick v. Orwin, Squires & Squires, when the defendant, or someone aiding him, left a dead coyote carcass on the hood of the plaintiff's truck, the court found that they "committed a continuing trespass, until the carcass was removed."[20]

Development of trespass law in relation to property law

Trespass laws in tort have developed from theories of property law in the Anglo-Canadian legal system. In the common law, the concept of property encompasses the rights and obligations of 'holders' of property.[21] One of these entitlements is the right to exclude.[22] Trespass laws allow for property owners to exercise this right and to seek damages from those who have violated this right.

Canadian statutes on trespass

Beyond common law tort, trespass is also proscribed by criminal statutes. However, it is crucial to note that these statutes do not govern the civil tort of trespass to land. The tort encompasses a broader scope than the criminal prohibitions.

The Criminal Code of Canada prescribes the offence of "Trespassing at night" (section 177) which makes it a summary offence to loiter or prowl at night, defined as the period between 9 pm and 6 am, "on the property of another person near a dwelling-house".[23]

Moreover, many provinces have legislation governing trespass. For example, in British Columbia, the Trespass Act sets out the definition of trespass and the associated penalties.[24]

In the news
Lawyer banned from Marineland
In 2022, Marineland, banned several people from entering their premises—including individuals who had never before entered the park.[25] This ban included the entire Last Chance for Animals (LCA) organization, and anyone who contravenes the notice could be charged under Ontario's Trespass to Property Act.[25]
Photo of an Orca being fed in an enclosure.
Following a complaint to police which included videos captured by LCA, police charged Marineland for allegedly "using dolphins and whales for entertainment purposes".[25] Some believe that the ban is a tactic by Marineland "to prevent LCA from attending and seeing what's going on".[25]
Fish farm trespass lawsuit
Activist and biologist Alexandra Morton was sued by Marine Harvest Canada in 2016 for allegedly trespassing on their salmon farms.[26] Marine Harvest has licences granting them non-exclusive rights to use Crown lands, but the presence of these farms is objected to by the Musgamagw Dzawada'enuxw Nation.[26] Morton claimed that the unauthorized salmon farm visits was necessary to draw attention to what she believes is a threat to wild salmon.[26] The BC Supreme Court granted an injunction to Marine Harvest which allows police to remove individuals who contravene the order from the site.[27]
British Columbia's Trespass Act
Trespass Act, RSBC 2018 c 3.[28]
Trespass prohibited

2 (1) Subject to section 3, a person who does any of the following commits an offence:

(a) enters premises that are enclosed land;
(b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;
(c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.
(2) A person found on or in premises that are enclosed land is presumed to be on or in the premises without the consent of an occupier of the premises or an authorized person.
(3) Subject to section 3, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to
(a) leave the premises, or
(b) stop engaging in an activity on or in the premises
commits an offence if the person
(c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or
(d) re-enters the premises or resumes the activity on or in the premises, as applicable.

Defences to trespass charge

3 A person may not be convicted of an offence under section 2 in relation to premises if the person's action or inaction, as applicable to the offence, was with

(a) the consent of an occupier of the premises or an authorized person,
(b) other lawful authority, or
(c) colour of right.

Trespass laws and the Charter

The Canadian Charter of Rights and Freedoms has placed some limits on how far property owners can enforce trespass laws. In light of the guarantees of freedom of speech and freedom of assembly enshrined in the Charter, the courts have revised their approach to determining how trespass laws could be enforced on properties that are accessible to the public.[29]

In Committee for the Commonwealth of Canada v. Canada, the Supreme Court of Canada ruled that the Charter protects the right to expression on some, but not all, government-owned property.[30] In this case, the plaintiffs wished to distribute pamphlets about their political organization at a Montreal airport but were restricted by federal regulations.[30] The Supreme Court of Canada found that the government did not have the same ability as private citizens to exclude individuals from their property.[30] Justice L'Heureux-Dubé stated:

If the government had complete discretion to treat its property as would a private citizen, it could differentiate on the basis of content, or choose between particular viewpoints, and grant access to sidewalks, streets, parks, the courthouse lawn, and even Parliament Hill only to those whose message accorded with the government's preferences.[30]

Critiques of trespass laws

Laws relating to trespass and the defence of property fall within the "intersection of civil and criminal law".[31] Individuals who are deemed as trespassers can therefore face consequences ranging from civil action for damages, fines issued by the government, or application of force by regular civilians.[31]

Some Canadian legal scholars, such as Alexandra Flynn and Estair Van Wagner, argue that viewing Canadian trespass laws through a critical lens reveals how such laws prioritize colonial conceptions of property and fail to capture Indigenous cultures and legal traditions.[32] Saskatchewan's Trespass to Property Act was strongly opposed by Indigenous nations who believe the law to be an infringement of their treaty rights.[33] Under the Act, anyone entering a rural property (such as unenclosed "grazing land") in the province is deemed a trespasser.[34]

Increasing privatization of property

Trespass laws have also been criticized by some due to the increasing privatization of various spaces. As many suburban areas often lack public spaces and social facilities, indoor facilities such as malls have often become centres for community life.[35] The privatization of such community spaces means that security guards in such properties can require anyone leave the property at any time, for any reason (or even no reason at all).[35] Statutes and common law relating to trespass often make no differentiation between the different types and forms of private property, meaning that legally spaces such as a private home and a shopping mall are treated the same.[35]

In Harrison v. Carswell, a pre-Charter case, an employee of a business operating in a shopping centre was participating in a strike. The manager of the shopping centre claimed that the employee was trespassing and therefore wasn't allowed to picket on the premises.[36] The Supreme Court of Canada held that shopping centres are not public spaces, and therefore, owners of the centre had the right to exclude individuals from their property.[37]

Discussion questions

Trespass in the common law

  • Why is consent to enter land a defence to the tort of trespass that must be raised by the defendant, rather than an element which the absence of must be demonstrated by the plaintiff?
  • Why is damage not a required element?

Scope of trespass laws

  • How strong should trespass laws in Canada be? Based on the cases and the news articles above, do you believe that trespass laws should be strengthened, or relaxed?
  • How do trespass laws in Canada (derived from the common law system) conflict with Indigenous legal traditions and Indigenous claims to lands?
  • Should all forms of private property be treated equally by the law, or should certain places be granted lesser legal protection?

Quiz


  1. ↑ Botterell, Andrew; et al. (2020). Introduction to the Canadian Law of Torts. Toronto: LexisNexis Canada. p. 59. Explicit use of et al. in: |first= (help)
  2. ↑ Jump up to: 2.0 2.1 2.2 BA v. R, [2023] HCA 14 at para 69.
  3. ↑ Peter Ballantyne Cree Nation v, Canada (AG), 2016 SKCA 124 at para 131, leave to appeal to SCC refused, 2017 CanLII 38581 (SCC) citing Philip H Osborne, The Law of Torts, 4th ed (Toronto: Irwin Law, 2011) at 296–98.
  4. ↑ Mann v. Saulnier, 1959 CanLII 360 (NBCA) at 132 citing John W Salmond & RVF Heuston, Salmond on Torts, 12th ed, (London, UK: Sweet & Maxwell, 1957) at 160–61.
  5. ↑ Peter Ballantyne Cree Nation v. Canada (AG), 2016 SKCA 124 at para 133, leave to appeal to SCC refused, 2017 CanLII 38581 (SCC).
  6. ↑ Jump up to: 6.0 6.1 6.2 6.3 Peter Ballantyne Cree Nation v. Canada (AG), 2016 SKCA 124 at para 132, leave to appeal to SCC refused, 2017 CanLII 38581 (SCC).
  7. ↑ R v. East Crest Oil Co Ltd, 1945 CanLII 24 (SCC).
  8. ↑ Peter Ballantyne Cree Nation v. Canada (AG), 2016 SKCA 124 at para 132, leave to appeal to SCC refused, 2017 CanLII 38581 (SCC).
  9. ↑ Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§7.1.2) at paras 136–37.
  10. ↑ Peter Ballantyne Cree Nation v. Canada (AG), 2016 SKCA 124 at para 135, leave to appeal to SCC refused, 2017 CanLII 38581 (SCC).
  11. ↑ Jump up to: 11.0 11.1 Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§7.1.2) at para 135.
  12. ↑ History Hub (1 November 2020). "What limits the power of the State? | Entick v Carrington | Legal Landmarks". YouTube.
  13. ↑ Jump up to: 13.0 13.1 Entick v. Carrington, [1765] EWHC KB J98 (BAILII) (7.1.1) at para 43.
  14. ↑ BA v. R, [2023] HCA 14 at para 23.
  15. ↑ R v. Evans, 1996 CanLII 248 (SCC) at para 6.
  16. ↑ R v. Singer, 2023 SKCA 123 at para 36.
  17. ↑ R v. Singer, 2023 SKCA 123 at paras 65–66.
  18. ↑ Jump up to: 18.0 18.1 R v. Singer, 2023 SKCA 123 at para 66.
  19. ↑ Peter Ballantyne Cree Nation v. Canada (AG), 2016 SKCA 124 at para 136, leave to appeal to SCC refused, 2017 CanLII 38581 (SCC).
  20. ↑ Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§7.1.2) at para 37.
  21. ↑ Mossman, Mary Jane (2019). Property Law Cases and Commentary (4th ed.). Toronto: Emond. p. 2.
  22. ↑ Mossman, Mary Jane (2019). Property Law Cases and Commentary (4th ed.). Toronto: Emond. p. 37.
  23. ↑ Criminal Code, RSC, 1985, c. C-46, s 177.
  24. ↑ Trespass Act, RSBC 2018 c 3.
  25. ↑ Jump up to: 25.0 25.1 25.2 25.3 Casey, Liam (22 May 2022). "Marineland bans lawyer, filmmaker and scientist among others from entering park". CBC News.
  26. ↑ Jump up to: 26.0 26.1 26.2 Johnson, Lisa (27 Sep 2016). "Marine Harvest Canada sues Alexandra Morton for trespassing on fish farms". CBC News.
  27. ↑ "B.C. Supreme Court grants injunction against fish farm protesters". CBC News. 27 Dec 2017.
  28. ↑ Trespass Act, RSBC 2018 c 3 (§7.1.4).
  29. ↑ Mossman, Mary Jane (2019). Property Law Cases and Commentary (4th ed.). Toronto: Emond. p. 52.
  30. ↑ Jump up to: 30.0 30.1 30.2 30.3 Committee for the Commonwealth of Canada v. Canada 1991 CanLII 119 (SCC).
  31. ↑ Jump up to: 31.0 31.1 Flynn, Alexandra; Van Wagner, Estair (2020). "A Colonial Castle: Defence of Property in R v Stanley". The Canadian Bar Review. 98 (2): 361.
  32. ↑ Flynn, Alexandra; Van Wagner, Estair (2020). "A Colonial Castle: Defence of Property in R v Stanley". The Canadian Bar Review. 98 (2): 382.
  33. ↑ Flynn, Alexandra; Van Wagner, Estair (2020). "A Colonial Castle: Defence of Property in R v Stanley". The Canadian Bar Review. 98 (2): 364.
  34. ↑ Flynn, Alexandra; Van Wagner, Estair (2020). "A Colonial Castle: Defence of Property in R v Stanley". The Canadian Bar Review. 98 (2): 363.
  35. ↑ Jump up to: 35.0 35.1 35.2 Mossman, Mary Jane (2019). Property Law Cases and Commentary (4th ed.). Toronto: Emond. p. 51.
  36. ↑ Harrison v. Carswell, 1975 CanLII 160 (SCC) at 203.
  37. ↑ Harrison v. Carswell, 1975 CanLII 160 (SCC) at 219.
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