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.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions