Civil Trespass

Civil Trespass

Howes v Fortis BC Inc. 2021 BCSC 2271

Civil Trespass

An instructive overview of the tort of trespass, including continuing trespass, is found in Peter Ballantyne Cree Nation v. Canada (Attorney General), 2016 SKCA 124, leave to appeal ref’d [2017] S.C.C.A. No. 95 (per Justice Herauf):

[130]   The modern function of trespass to land was described by Philip H. Osborne in The Law of Torts, 4th ed. (Toronto: Irwin Law, 2011) at 295–296:

… In modern tort law, trespass to land plays a much more sophisticated role.

First, it protects the possessor’s interest in freedom of land use. The power to control entry onto land facilitates the use and development in accordance with the possessor’s desires and interests. A possessor of land is not required to accommodate others who may have a reasonable need or desire to enter his land.

Second, trespass to land plays a conventional compensatory and deterrent role when an intruder damages land or destroys premises.

Third, trespass to land plays an important role in the protection of privacy interests. The slightest intrusion into a person’s home or apartment gives rise to trespassory remedies. …

Finally, trespass to land is an adjunct of the law of real property. It plays a role in the determination of competing land claims and the settlement of boundary disputes. It also provides protection to the possessor against the acquisition of prescriptive easements over his property as a result of twenty years of continuous trespassing in derogation of the possessor’s rights.

The trespassory conduct may be trivial and harmless, such as a technical but permanent invasion of airspace and the use of land as a pedestrian right of way.

Nevertheless, the tort of trespass to land allows the possessor to assert his proprietary rights and prevent the establishment of a prescriptive easement. The capacity of the tort to trespass to complement property law is enhanced by the fact that trespass is actionable without proof of damage and also by the fact that mistake is no defence.

Osborne in The Law of Torts describes the elements of trespass as follows (at 296–298):

(a)  the intrusion onto the land must be direct;

(b)  the interference with land must be intentional or negligent; and

(c)  the defendant’s interference with the land must be physical.

An aspect of trespass that is of particular importance in this case is that the tort may “continue” if the interference is not dealt with by the defendant. This characteristic is explained in Fleming’s The Law of Torts, 10th ed. at 53 …:

If a structure or other object is placed on another’s land, not only the initial intrusion but also failure to remove it constitute an actionable wrong. There is a “continuing trespass” as long as the object remains; and on account of it both a subsequent transferee of the land may sue and a purchaser of the offending chattel or structure be liable, because the wrong gives rise to actions de die in diem until the condition is abated … In all these cases, the plaintiff may maintain successive actions, but, in each, damages are assessed only as accrued up to the date of the action. This solution has the advantage to the injured party that the statute of limitations does not run from the initial trespass, but entails the inconvenience of forcing him to institute repeated actions for continuing loss.

[   A similar passage is found in Salmond on the Law of Torts (R.F.V. Heuston, 17th ed. (London: Sweet & Maxwell, 1977)) at 42:

That trespass by way of personal entry is a continuing injury, lasting as long as the personal presence of the wrongdoer, and giving rise to actions de die in diem so long as it lasts, is sufficiently obvious. It is well settled, however, that the same characteristic belongs in law even to those trespasses which consist in placing things upon the plaintiff’s land. Such a trespass continues until it has been abated by the removal of the thing which is thus trespassing; successive actions will lie from day to day until it is so removed; and in each action damages (unless awarded in lieu of an injunction) are assessed only up to the date of the action. …

General Damages

In Arbutus Bay Estates Ltd. v. Canada (Attorney General), 2018 BCCA 259 at paras. 28-29, the Court (per Justice Tysoe) observed that general damages for trespass can be more than nominal depending on the circumstances of the case and that there is no requirement to prove actual damage. At para. 29, Tysoe J.A. stated:

[29] Hence, damages for trespass are awarded “at large” without proof of actual damage. All of the circumstances should be taken into account in making an assessment of the loss sustained by the appellant, which should approximate a sum that the appellant should reasonably be paid for the use of its land (also see Webb v. Attewell (1993), 88 B.C.L.R. (2d) 1 (C.A.) at para. 20).

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