Last Updated: , 73 days ago.
Can I sue in Ontario for trespass to land or property interference if someone entered my property without permission?
Yes. In Ontario, trespass to land is a civil tort that can be actionable even when no major damage occurred, as long as there is a direct and physical intrusion onto land in the plaintiff’s possession and the defendant’s act was voluntary (intent is not required). Trespass can also be a provincial offence under the Trespass to Property Act, R.S.O. 1990, c. T.21, and in some break-and-enter scenarios it can overlap with Criminal Code of Canada offences. Ontario Courts also recognize trespass claims and set out the elements and damages approach in cases like Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154. For a fast, plain-language review of your situation and next steps, including what to request in Small Claims Court, reach Cross Legal Services by phone at (289) 443-0675.
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Protections Against Property Interference
People often think trespassing is solely criminal, such as a break & enter; yet trespass to property is also a civil tort in addition to being a chargeable offence. As a prosecutable offence, trespass to property falls under the Trespass to Property Act, R.S.O. 1990, c. T.21 and the cases interpreting it, and may also engage the Criminal Code of Canada, R.S.C. 1985, c. C-46, depending on the nature of the trespass. As a tort, trespass to property is wide-ranging involving any uninvited entry or interference with the land of another, or exceeding the limits of an invitation or authorized use, can amount to trespass.
Note: For immediate help, please contact Cross Legal Services by phone at: (289) 443-0675 to retain services or to discuss any specific questions that you may have.
The Law
The Court in Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, set out a straightforward explanation of tortious trespass, by noting:
[52] With respect to the claim of trespass to land Lederman J. in Hudson’s Bay at para. 9 states as follows:
Clerk and Lindsell define trespass to land, at p. 837, as consisting of “any unjustified intrusion by one person upon land in the possession of another”. Halsbury’s, Vol. 45, para. 1384 states that “every unlawful entry by one person on the land in possession of another is trespassed for which an action lies…
[53] The elements for the claim of trespass to land are set out by Crane J in Grace v. Fort Erie (Town), 2003 CanLII 48456 (ON SC), [2003] O.J. No. 3475 (SCJ) at para. 86:
The elements of trespass have been described as follows:
- Any direct and physical intrusion onto land that is in the possession of the plaintiff, (indirect or consequential interference does not constitute trespass).
- The defendant’s act need not be intentional, but it must be voluntary.
- Trespass is actionable without proof of damage.
- While some form of physical entry onto or contact with the plaintiff’s land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto the plaintiff’s land can constitute trespass.
As shown, trespass to land may be either purposeful or unintended. For example, Gross v. Wright, [1923] S.C.R. 214, involved a deliberate attempt to encroach upon a neighbour’s property. By contrast, trespass may also arise without wrongful intent, such as when a boundary is crossed unknowingly, as in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where trees belonging to a neighbour were mistakenly cut down.
Damages for Trespass
Figuring out the exact harm caused by trespass is often tricky. Sometimes, in cases of technical trespass where no real damage occurs, finding the right remedy can also be difficult. In those situations, courts usually award only a token amount. The Court of Appeal explored this issue of trespass damages in detail in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, noting, among other things, the challenge of proving damages with precision and stating:
[61] It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence. Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases. The controlling principles were clearly expressed by Finlayson J.A. of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 112 O.A.C. 138, at para. 75, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 516:
I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.
See also Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 CanLII 705 (SCC), [1999] 1 S.C.R. 142, at para. 99; 100 Main Street East Ltd. v. W.B. Construction Ltd. (1978), 1978 CanLII 1630 (ON CA), 20 O.R. (2d) 401 (C.A.), 88 D.L.R. (3d) 1, at para. 80; Penvidic Contracting Co. v. International Nickel Co. of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267, at pp. 278-79.
Conclusion
The law of trespass to property applies broadly. As a strict tort, responsibility can arise even where the trespass was unintentional. In situations without bad intent or real damage, only small damages are expected. Yet, there are cases where an accidental trespass has led to major consequences.
NOTE: A considerable number of online searches for “lawyers near me” or “best lawyer in” typically highlight an urgent requirement for skilled legal assistance rather than a particular professional designation. In Ontario, licensed paralegals operate under the same Law Society that governs lawyers and have the authority to represent clients in specific litigation situations. Advocacy, legal evaluation, and procedural expertise are fundamental to this position. Cross Legal Services provides legal representation within its licensed remit, focusing on strategic alignment, evidence preparation, and compelling advocacy designed to secure effective and positive outcomes for clients.
