Canada: Dealing With A Flagrant Trespass: How To Protect Your Property Rights In Canada

Property rights are "sacrosanct" in Canada... or at least that is what courts tell us. The practical reality is somewhat different. This was highlighted a recent incident in Calgary where a landlord had her home declared an "embassy" by a tenant who refused to vacate. The situation made headlines across the country. The incident brought attention to the rise of freemen-on-land, a group whose legal tactics are summarized in Meads v. Meads, 2012 ABQB 571. However, the incident was also emblematic of a problem that can arise for any commercial landlord or property owner in Canada: how to deal with a flagrant trespasser who refuses to leave.

Such situations raise a variety of legal and practical problems. Not least of which is the potential for escalation from a simple trespass to something much more serious. Indeed, recent violence in New Brunswick arising out of a blockade of land due to fracking exploration demonstrates the potential volatility of these situations.

This post identifies some of the the issues you will need to address. However, these situations are, by their nature, time sensitive and fact specific. Seeking legal counsel as soon as possible will always be a prudent first step.

1. Understand your position

In some circumstances, such as the two highlighted above, it is clear that the land owner is "in the right" and the trespasser(s) are "in the wrong", in the eyes of the law at least.

Other circumstances are less straightforward. For example, termination of commercial tenancies often involve a host of complex contractual issues. See: 1497777 Ontario Inc. v. Leon's Furniture Ltd, 2003 CanLII 50106 (ON CA). Similarly, picketing in labour disputes raises a variety issues that need to be considered and resolved. See: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8.

2. Next steps

Assuming you are "in the right" and the trespasser(s) are in fact trespassing, you are faced with the practical problem of getting the trespasser(s) off of your property. Unfortunately, a phone call to the local police is unlikely to solve your problem.

Police in Canada generally view circumstances such as these as a "civil" matter between two private parties. They are unlikely to get involved without a court order. Which is to say, if you want the trespasser(s) off your property, you need to get an injunction.

3. The Injunction

An injunction will require you to establish: 1) You have a serious case to be tried, i.e. your case is not frivolous or vexatious; 2) You will suffer irreparable harm if the injunction is not granted; and 3) That the balance of convenience favours granting the injunction. See RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311.

Injunctions are, by their nature, fact specific and your approach to obtaining the injunction will vary with your circumstances. Key questions you will want to consider include:

  1. Who is the injunction against? This can be tricky, the trespasser(s) are unlikely to line up and provide you with their names. You may also have to deal with new trespasser(s) coming onto the site after you have obtained the injunction.
  2. How will you establish irreparable harm? Fortunately, courts typically hold that a trespass to property is prima facie irreparable harm. In fact, some courts have gone as far to say that in cases of trespass, if a party can show a serious question to be tried an injunction will be granted "without regard" to the remaining parts of the test. See: Sol Sante Club v. Biefeld et al, 2005 BCSC 1908.
  3. How, if at all, should the order address the need for police involvement? As a rule such language should not be necessary as orders are enforced by the local sheriff, with the assistance of police if necessary. No order is needed for such assistance. See: CNR v John Doe, 2013 ONSC 115. However, in some circumstances courts will include language requiring police to enforce the injunction. See: Red Chris Development v Quock et al, 2006 BCSC 1472. Indeed, without such language you may be faced with a situation where you get your injunction but the police will not assist you in removing the trespassers from your property. See: CNR v. Chief Chris Plain, 2012 ONSC 7356.

4. What's next?

Once you have an injunction, it is up to local sheriff to enforce it, likely with assistance from the local police force. As noted above, this may be a challenge depending on the facts of your case.

5. What else can you do?

Once you have obtained an injunction, initiating contempt proceedings is also an option. There are two types of contempt, criminal and civil. The distinction between the two was summarized in Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, 2006 CanLII 41649 (ON CA), a decision concern the infamous Caledonia protests in Ontario:

A person may be found in civil contempt for refusing to comply with a court order (other than an order for the payment of money) where the refusal causes a private injury or wrong. A person may be found in criminal contempt for refusing to comply with a court order, where the refusal interferes with a court's process or seriously threatens the proper administration of justice. (page 7 footnote 4)

Arguably both may apply in a case of a wilful trespasser. Deciding which one to pursue and who to pursue it against will depend on the facts of your case.

6. Other considerations

The preceding has been a discussion of a legal process for removing trespasser(s) from your property. Throughout this process, it is critical to keep in mind that there are non-legal considerations at play that may outweigh the legal. Both purely economic and public relations considerations come into play when dealing with a wilful trespasser. Certainly in the case of the elderly landlord, public sympathy will align with legal rights, however, in other cases it is less clear and an aggressive legal approach may not be prudent. For this reason, keeping business stakeholders engaged throughout the process is essential.

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