Blacks law dictionary defines ejectment as an action to restore possession of property to the person entitled to it. Not only must the plaintiff establish a right to possession in himself, but he must also show that the defendant in his wrongful possession. If the defendant has only trespassed on the land, the action is for trespass IE damages
An action for ejectment requires the plaintiffs to demonstrate:
1. That the plaintiff has title to the property;
2. That the defendant currently possesses the property; and
3. That the plaintiff intends to regain possession of the property.
Berscheid v. Ensign, [1999] B.C.J. No. 1172 (S.C.) and Portland Managements Ltd. v. Harte, [1977] Q.B. 306 (C.A.)
Berscheid stated:
The tort of ejectment, now known as an action for the recovery of land, is an action to restore possession of land to a party lawfully entitled to it.
67 The distinction between ejectment and trespass to land is that in trespass, the plaintiff always maintains possession of the land in question, as opposed to ejectment, where the plaintiff has lost possession of land lawfully his and must therefore sue for its recovery.
68 Thus, to ground an action of ejectment, the plaintiff must first be dispossessed of property which is rightfully his.
The facts demonstrating such dispossession must be pled, i.e. the plaintiff must show that lands to which he owns a possessory right are now possessed by the defendant.
In order to resist the order for possession the defendants need only demonstrate a right of possession consistent with the plaintiff’s title.
As well, a summary procedure ought not to be used where there are complex issues of fact or law to be tried. See North Shore Winter Club v. Co-operators General Insurance Co., [1993] B.C.J. No. 219 (S.C.).
See also (Terbasket v. Harmony Co-ordination Services Ltd., 2003 BCSC 17 [Terbasket] at para. 16 (leave to appeal ref’d, on other grounds: 2003 BCCA 238))
