Last Updated: , 73 days ago.
How does trespass to property work in Ontario and what should I do if someone entered my land or went beyond permission?
Lo Greco Law can help you understand Ontario’s protections against property interference, including when “trespass to land” is a civil tort with no proof of damage and when it may also be a prosecutable offence under the Trespass to Property Act, R.S.O. 1990, c. T.21, plus relevant Criminal Code scenarios depending on conduct. You generally may have a claim even for an unauthorized entry (or going beyond permission), and courts assess damages based on evidence, often leading to nominal damages for purely technical trespass. With 30+ year experienced lawyer services and LSO tribunal representation, Lo Greco Law can review the facts, preserve evidence, advise on next steps, and represent you if dispute escalation leads to court. Call (416) 488-4110 for guidance on documenting the incident and determining the strongest path forward in Ontario.
Add this website to Google Preferred Sources
Protections Against Property Interference
Trespassing upon property is commonly understood as a unlawful act in respect of the criminal law, such as in the context of a break & enter; however, trespass to property is a civil law tort in addition to 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 and the cases arising therefrom and perhaps the Criminal Code of Canada, R.S.C. 1985, c. C-46 depending on the relevant nature of the trespass. As a tort, trespass to property is very broad and involves presence upon and interference with the land of another as well, technically, could arise at any time an uninvited person enters upon the lands of another, or when invited, oversteps or uses the lands of another in an unauthorized way.
Note: For immediate help, please contact Lo Greco Law by phone at: (416) 488-4110 to retain services or to discuss any specific questions that you may have.
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
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.
