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Trespass to Property:
The Wrongful Interference with Land Including Things Affixed Thereto
Last Updated: July 05 2026
Question: 1) What counts as trespass to land in Ontario, and when can you sue or seek provincial offence consequences?
Answer: 2) If you need help in Ontario with protecting your property from unwanted entry or interference, Forseti Legal Services can assist you in understanding when an uninvited person’s presence amounts to trespass to land, including the key elements such as a direct and physical intrusion onto your property, done voluntarily even if not intentional, and that proof of actual damage is not always required, with potential remedies ranging from nominal damages for a technical trespass to more substantial damages where real harm occurred. Trespass may also overlap with provincial offence risk under the Trespass to Property Act, R.S.O. 1990, c. T.21 or, in some situations involving a break and enter to commit a crime, the Criminal Code of Canada, R.S.C. 1985, c. C-46. An Ontario paralegal from Forseti Legal Services can review what happened, gather the facts you will need, and help you plan next steps for a complaint or civil claim, so you can move forward with clarity and stronger chances of an effective outcome, call (705) 806-7577 to book a consultation.
Protections Against Property Interference
Trespassing upon property is commonly understood as a unlawful act in respect of the criminal law, such as in the context of a break & enter; however, trespass to property is a civil law tort in addition to a prosecutable offence. As a prosecutable offence, trespass to property is addressed by the Trespass to Property Act, R.S.O. 1990, c. T.21 and the cases arising therefrom and perhaps the Criminal Code of Canada, R.S.C. 1985, c. C-46 depending on the relevant nature of the trespass. As a tort, trespass to property is very broad and involves presence upon and interference with the land of another as well, technically, could arise at any time an uninvited person enters upon the lands of another, or when invited, oversteps or uses the lands of another in an unauthorized way.
The Law
Guidance on what qualifies as tortious trespass is outlined in the decision of Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, where it was stated:
[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.
The tort of trespass to property, often called trespass to land, can happen on purpose or by accident. An intentional example appears in Gross v. Wright, [1923] S.C.R. 214, which involved an attempt to take over a neighbour’s space. Trespass can also happen innocently, such as when a property owner crosses a boundary without intending harm, as seen in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where trees on a neighbour’s land were mistakenly cut down.
Damages for Trespass
The amount of damage from trespass can be hard to measure. When a trespass happens without causing real harm, deciding on fair compensation can be problematic, and courts usually grant only a nominal award. The Court of Appeal reviewed this issue thoroughly in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, highlighting the challenge of proving damages precisely 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
Trespass to property covers a very broad range of situations. Since it is treated as a strict tort, liability may arise even for a mistake. When the trespass involves no improper purpose and no harm, courts generally award only a token sum. Nonetheless, innocent trespass can still cause serious harm in some cases.
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