Trespass to Land

Trespass to Land Elements: A direct and intentional physical intrusion onto the land in the possession of another. (Turner v Thorne) § § § Direct (direct force) and Intentional conduct (motive is irrelevant) Physical intrusion (excludes smoke, light, smog, noise, odors, etc.) Onto the land in possession of another à “every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground with my license, but he is liable to an action, though the damage can be nothing.” Errick v Carrington: D broke into P’s house and took papers Types: o Entering land IN PERSON or FAILING TO LEAVE after permission to enter is revoked o Forced entry = increase of damages o Propelling AN OBJECT or FAILING TO REMOVE IT Available Defenses: 1. License – consent, either express or implied 2. Necessity – emergency situation or preventing danger a. Harm to public – save lives, protect from nature (Surocco v Geary: necessity must be clearly shown) b. Harm to trespasser c. Harm to possessor of land d. Harm to 3rd party 3. Legal Authorization (Police Officer) à an innocent mistake is not a defence to trespass and its consequences; motive is irrelevant; liable for all foreseeable and unforeseeable consequences of a trespass Turner v Thorne: Delivery person leaves boxes in garage, P trips over them due to no lighting à Trespass is limited to DIRECT intrusions on the land in possession of another Hoffman v Monsanto Canada: GMO seeds landed on neighbour’s organic farm à Public land has implied license for entry, but trespass can occur after permission to enter has been revoked, and that the common law protects property rights unconditionally unless there is an overriding statute Harrison v Carswell Dissent: Trespass is “unjustified invasion of another’s possession; privilege only withdrawn for unlawful behavior, need to balance property rights with other rights and interests à The potential of irreparable harm to the public or public interest may protect individuals from injunctions or trespass locations (BC Trespass Act S4) Vancouver (City) v Wallstam: activists occupying a city-owned lot that has been vacant for 20 years à Even if the person has a reason to be at a certain location, it may not give right to Trespass in another person’s yard that has been made clear is private property (Criminal Code S177: Trespass At Night) R v. Priestap: Man stalks and follows woman at night and convicted for prowling à Doctrine of Continuing Trespass applies when object is not removed from property; new cause of action every day it remains Williams v Mulgrave: drain across property caused flooding, damages for 6 years à trespass requires P to be in possession of land at the time of intrusion Townsview Properties v Sun Construction: wrongful excavation prior to acquiring possession à substantial punitive damages if D acts in high-standard or arrogant fashion Nantel v Parisien: employee broke into business to demolish building, no warning given BC TRESSPASS ACT Trespass prohibited (1) Subject to section 4.1, a person commits an offence if the person does any of the following: (a) enters premises that are enclosed land; (b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited; (c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited. (2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there. (3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to (a) leave the premises, or (b) stop engaging in an activity on or in the premises, commits an offence if the person (c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or (d) re-enters the premises or resumes the activity on or in the premises 4.1 A person may not be convicted of an offence under section 4 in relation to premises if the person's action or inaction, as applicable to the offence, was with (a) the consent of an occupier of the premises or an authorized person, (b) other lawful authority, or (c) colour of right. CRIMINAL CODE, RSC 1985, C C-46, SS177 Trespassing at night 177 Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction Private Nuisance Elements: Interference is… § substantial – alters the nature of property or significantly interferes with actual use of the property § unreasonable – look to surrounding circumstances: character of the harm, neighborhood, intensity of interference, time of day, day of week, zoning delegation, nature and utility of conduct Available Defenses: 1. Statutory Authority 2. Statutory Immunity – designated by legislature 3. Consent – strong evidence of approval 4. Prescription – “nuisance” has continued uninterrupted for lengthy period of time with P’s knowledge Trespass v Nuisance 1. actionable per se (proof of loss NOT required)? a. YES v NO 2. protects? a. possessions v quality of possessions 3. concerned with? a. nature of conduct v effect of conduct on use and enjoyment of land 4. requires intent? a. YES v No à Distinguishes torts of trespass to land & private nuisance Kerr v Revelstoke Bldg Materials: ash, smoke, dust (trespass) // objectionable sounds (private nuisance) Trespass to Airspace Any direct and intentional intrusion into the airspace with P’s zone of use à overhead flight at ANY altitude is trespass BUT it’s privileged when: a legitimate purpose, in a reasonable manner, at a height that doesn’t unreasonably interfere with use of land Atlantic Aviation v NS Light and Power: aviators wanted to prevent landowner from erecting building/transmission wires à an owner’s airspace rights are restricited to height necessary for the ordinary use and enjoyment of the land and structures upon it Bernstein v Skyviews & General Ltd.: aerial photos of house = trespass? Removing a Trespasser à trespasser cannot be forcibly removed until they’re (1) requested to leave; and (2) given an opportunity to do so à force must be reasonable MacDonald v Hees: ejected from hotel room, claims assault à An occupier may be required to tolerate presence of a trespasser if ejecting them would pose a foreseeable risk of physical injury Dunn v Dominion Atlantic Railway: liable for negligence bc ejected individuals who were obviously in vulnerable situations Battery (Trespass to the Person) 3 ELEMENTS: Bettel v Kim: Direct and intentional bringing about of a physical harmful or socially offensive contact with the person of another. (Burden of proof on P) 1. Direct and intentional bringing about – (could be putting drugs in a drink J(MI) v Grieve) 2. Physical interference or socially offensive conduct (see Malette v Shulman) 3. With the person of another (includes any reasonable extensions of body such as backpack, clothing, horse) a. an result in bodily injury or violate integrity or offend P’s sense of dignity General rule: If battery is proven, the outset of the damage caused by the battery even if it was unforeseen, will be held liable by the perpetrator of the battery. However, this is not strict liability, only the foreseeable elements will be upheld. (Eg. Heart attacks or seizures) Defenses (burden of proof on D to prove partial or complete defenses) – consent (complete defense) // self-defense // necessity // legal authority (complete defense) // provocation // mistake Bettel v Kim: storeowner shakes kid by the collar to get confession re: throwing matches, accidentally hits nose. à Once a plaintiff has proven intentional interference with a person, liability of (un)intended consequences are within the scope of damages sufficient, severity of harm is irrelevant à thin-skulled man rule – take the victim as you find them Malette v Shulman: lifesaving action by doctor to donate blood who refused it on religious grounds à action deemed socially offensive despite position motive and can be actionable Assault (Trespass to the Person) The intentional creation in the mind of another of a reasonable apprehension of immediate physical contact. (Holcombe v Whitetaker) 1. The intentional creation in the mind of another… 2. Reasonable apprehension 3. Immediate physical contact Holcombe v Whitaker: husband threatens to kill wife and bangs on door when she wants marriage annulled; à sufficient to arouse the apprehension of harm or offensive conduct 1. only takes place when victim knows it’s happening 2. threat of violence must be such that a reasonable person of ordinary courage would be in fear of an attack Police v Greaves: D came to door drunk with knife in hand, threatened to stab P if they moved; assault when P has reasonable grounds that D has present ability to effect D’s purpose Battery VERSUS Assault • Can be a combination – first a threat and then an attack • B w/o A – strike victim from behind • A w/o B – threatens harm but doesn’t carry out the threat Sexual Battery and Role of Consent: no individual tort of sexual battery, but consent requirement is modified Norberg v Wynrib: drug addict and asshole pharmacist à Defense of consent is VITIATED or non-existent if there is a fundamental inequality between the parties and if this inequality is exploited: Majority – La Forest n proof of fundamental inequality between the parties (age, nature, gender, occupation) n proof of exploitation (look to community standard, what others would say) Scalera v Non-Marine Underwriters: D is bus driver, P is insurance company, accused of sexual assault of young girl, insurance hinges on who has to prove consent (compensatory damages bc of bodily injury EXCEPT for intentional acts) à Consent must be proven by the D, not an element established by the P (Scalera) à P has to prove non-consent, bc sex is often consensual Dissent Iacobucci à sex involved singling out another person’s body in a DELIBERATE, TARGETED act à it is NOT: an ordinary casual contact that must be accepted into everyday life, sort of contact where consent can be implied Obvious Policy Reasons: victim blaming, shifts focus onto the Plaintiff, only one side of the story if only Plaintiff testifies, D is in best position to say what is on his mind, sexual offences are underreported