Relevent Case Law
Our courts have consistently upheld the right of the 'occupier' to recieve guests in their home and a person with legally confered authority can not be trespassed. The Supreme Court of Canada has ruled that even police officers are trespassers if they are not the invited guest of the occupier.
Ontario Courts’ Rulings: TPA Occupier Rights
(facility owners or operators are not occupiers)
Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 (ON SC)
It seems clear to me that both by including specific provisions recognizing that the tenant may invite guests and by general implication from the nature of a residential tenancy, the landlord here has granted the tenant the right to invite persons onto the common areas and into the rented premises. Rented residential premises include more than the specific unit and include proper ingress and egress and the amenities promised: . The landlord would be breaching this right of the tenant if the landlord attempted to exclude an invitee of the tenant by recourse to the Landlord and Tenant Act.
Page 12 As I have noted, s. 1 of the TPA
(1) In this Act,
“occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
even if there is more than one occupier of the same premises; (“occupant”)
S.1 of the Act states that there can be more than one occupier and it seems clear that in our situation the tenant is also an occupier. Since Mr. Witter was an invitee of the tenant, an occupier, he would not be guilty of an offence if he entered the premises after receiving the landlord's notice because he had the express permission of another occupier.
It seems to me that Mr. Witter would have a defence under s. 2(1)(a) regarding his entry or occupation by adducing evidence of his invitation from the tenant. He would have a defence under s. 2(1)(b) to his refusal to leave by adducing the same evidence as showing he did not lack "a right or authority conferred by law".
Further, it would appear that s. 2(1)(b) only applies where the person enters without permission or where the permission is withdrawn by the inviting occupier.
In conclusion, I find that the landlord has the right under the Trespass to Property Act to prohibit a person from entering a rental project but only if the person is not an invitee of the tenant.
Gentles v. Intelligarde International Incorporated, 2010 ONCA
JURIANSZ J. A.:
[50] In order to rely on s. 9 of the TPA, the security guards needed reasonable and probable grounds to believe that Gentles and Francis were on the premises in contravention of s. 2. This means that Collins and Barnes had to have had objectively reasonable beliefs in two things.
[51] First, they had to have grounds to believe s. 2 applied to Gentles and Francis. They had to reasonably believe that Gentles and Francis were not on the premises under “a right or authority conferred by law”, that is, that they were not residents or guests of residents.
[52] Second, they had to have grounds to believe that Gentles and Francis had done at least one of three things listed in s. 2(1)(a) or s. 2(1)(b). That is, they had to reasonably believe that Gentles and Francis,
(i) had entered on the premises where entry was prohibited contrary to s. 2(1)(a)(i), or
(ii) were engaging in a prohibited activity on the premises contrary to s. 2(1)(a)(ii), or
(iii) had failed to leave the premises immediately after being directed to do so by the security guards contrary to s. 2(1)(b).”
[54] It is s. 2(1)(b) that must be considered. Before the security guards could reasonably believe that s. 2(1)(b) applied, they had to have a reasonable basis for believing that Gentles and Francis were not residents or guests of residents. The excepting words of the opening of s. 2(1) make clear that a resident and his guest do not contravene s. 2 by failing to leave premises after being directed to do so.
[64] Nor can the escalation of vulgarity and aggressiveness attributed to Gentles and Francis contribute to the required reasonable grounds. It seems to me that the one thing the security guards did have a reasonable basis to believe, having encountered vulgarity and belligerence upon first “questioning” the appellants, was that they would encounter more vulgarity and belligerence.
The Gentles Court found there were no reasonable and probable grounds to arrest the plaintiffs [para 55]. The mere fact the plaintiffs therein were ‘uncooperative, vulgar and belligerent’ did not make them trespassers [at paras 65, 71 and 79].
[68] Even if Gentles and Francis had been given an unequivocal direction to leave, that circumstance would not provide reasonable grounds to believe they were on the premises in contravention of s. 2 of the TPA. The excepting words of the opening of s. 2 (1) make clear that residents do not commit an offence by refusing to leave the premises if directed to do so. Collins and Barnes needed to show circumstances, other than the appellants’ failure to leave, to establish a reasonable basis for believing Gentles and Francis were not on the premises “under a right or authority conferred by law”. It is bootstrapping logic to regard their failure to leave as providing the grounds to be able to give them an effective direction to leave.
R.v. Webers, 1994 CanLII 7552 (ON SC)
https://www.canlii.org/en/on/onsc/doc/1994/1994canlii7552/1994canlii7552.html?resultIndex=7
O’CONNOR J.:
Was Mr. Webers a trespasser?
[56] The Crown argues that, although Mr. Webers was originally an invitee in the room, he became a trespasser. I find that there can be no question that Mr. Webers was not a trespasser. He had been invited by the lawful occupiers of the premises to attend for a specific purpose. He was engaged in carrying out the task asked of him. The occupier of property is entitled to revoke an invitation and require the invitee to leave, thus making him a trespasser if he refuses. Mr. Webers was acting under a right or authority conferred by law, which is referred to in s. 2(1) of the Trespass to Property Act, R.S.O. 1990, c. T.21.
Landlord Tenant Board cases
A summary review of LTB decisions confirms that unless a criminal code violation is occurring, at no time may a landlord restrict, prohibit, or impose rules (visiting hours, number of visitors, ) on a rent paying tenant.
Pursuant to section 22 of the Residential Tenancy Act, 2006 the LTB has upheld the right of tenants to quietly enjoy their premises and the tenant is the only person with the authority to decide who can enter their home as a visitor.
Section 23 of the Act protects the tenant from harassment: Harassment is not defined but is generally taken to be a course of conduct that a reasonable person ought to know would be unwelcome.
In the case of Radokovic v. Stoney Creek Non-Profit Housing Corp, the landlord trespassed the tenant's ex-husband due to alleged abusive and aggressive behavior. This was found to be contrary to law regardless of whether there was a "good faith" intention behind serving the Notice of Trespass.
The leading case in LTB decisions is Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC). The Court held that the landlord's action (issuing No Trespass Notice to tenant's fiance) constituted a breach of the landlord's obligations to the tenant and the tenant was awarded a 15 per cent rent abatement for the landlord's conduct.
There are other cases where the landlord was found liable to the tenant and banned visitors and it has been routinely held that such restrictions and prohibitions amount to harassment and substantial interference with the reasonable enjoyment of the premises by the tenant. "Reasonable Enjoyment" includes the right to have the full use of a rental unit for all lawful purposes and includes members of the tenant's household. Having guests is lawful and therefore part of what constitutes "quiet enjoyment" & "reasonable enjoyment" of a rental unit.
SWL-03896-17 (Re), 2017 CanLII 60355 (ON LTB)
It is noteworthy in this case that a person charged with aggressive behaviour can not be trespassed even though criminally charged with aggressiveness.
The Landlord is seeking termination of the tenancy because according to the Landlord, the Tenant has substantially interfered with other tenants’ reasonable enjoyment of the rental unit by allowing TB into the rental unit in contravention of two peace bonds and in contravention of a No Trespass Notice. In addition, the Landlord alleges that the conduct of TB substantially interferes with the reasonable enjoyment other tenants. ES, on behalf of the Landlord, testified “The Landlord wants to make sure that we are safe and that the only way we can do that is by evicting the Tenant PD That will ensure TB is no longer a problem in our public housing unit.”
- The Landlord submitted that TB has been abusive and offensive towards staff and other tenants in the past and was charged criminally and has a recognizance order against him. Other tenants fear TB and have raised those concerns on numerous occasions with the Landlord. However the Landlord only presented one neighbour’s affidavit and emails to support their claim regarding numerous tenants’ complaints.
- The Tenant submits that the Landlord cannot invoke the authority of the Trespass to Properties Act to prohibit entry of an invitee. The Tenant’s position is when the Landlord issued the Trespass Notice, the Landlord invoked the authority of the Trespass to Properties Act.
- I agree with the Tenant’s position given the Court’s finding in Cunningham v. Whitby Christian Non-Profit Housing Corp’s, and given that the Tenant in this case invited T.B. into the rental unit.
It is ordered that: The Landlord’s application is dismissed.
TET-83322-17 (Re), 2017 CanLII 94022 (ON LTB)
- Threatening to charge guests of the Tenant with trespassing is clearly unreasonable behaviour as is demanding a tenant move out without proper notice.
- So based on all of the evidence and submissions of the parties I am satisfied that by threatening to evict the Tenant, ordering her to remove guests and pets from the unit, and demanding she vacate without proper notice or cause, the Landlords breached sections 22 and 23 of the Act.
- Abatement is a contractual remedy. It reflects the idea that a tenant is paying for a bundle of goods and services and if he or she is not receiving everything being paid for the rent should be abated proportional to the difference.
Tenant was successful.
SWT-02262 (Re), 2009 CanLII 78516 (ON LTB)
DGM (the tenant) applied for an order determining that the Landlords, the Landlords' superintendent, or agent harassed, obstructed, coerced, threatened or interfered with her, entered the rental unit illegally, substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of her household and withheld or deliberately interfered with the reasonable supply of a vital service, care service, or food that the Landlords are obligated to supply under the tenancy agreement.
Determinations
- The Landlords have substantially interfered with the Tenant’s “reasonable use and enjoyment” of the premises and “interfered” with the Tenant, contrary to sections 22 and 23 of the Residential Tenancies Act, 2006 (the ‘Act’). Ms G had done nothing illegal, and the Landlords had not obtained a “no trespass” order through the police or a “peace bond” order through the Ontario Court of Justice. No charges were laid against Ms. G at any time. The Landlords’ policy of having its employees calling the police whenever the Tenant’s guest, WG, attended the property was unjustified and contravened the Act.
Tenant prevailed and awarded financial restitution.
TET-72845-16 (Re), 2016 CanLII 88745 (ON LTB)
D.W-F. (the 'Tenant') applied for an order determining that H.C.H.S. (the 'Landlord') substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of the Tenant's household.
Determinations/reason
The leading case on this topic is cited as “Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)”. The successful tenant argued that the Trespass to Property Act empowers the occupier to exclude persons and section 1 states that “occupier” includes a person in physical possession or “who has responsibility for and control over the condition of premises or the activities there carried on, or control over the persons allowed to enter the premises”.
- In the above cited case the Court goes through an exercise in determining that the Landlord may restrict people from entering the residential complex and can issue trespass order against those people. However, the Court goes on to say “I find that the landlord has the right under the Trespass to Property Act to prohibit a person from entering a rental project but only if the person is not an invitee of the tenant.”
It is ordered that: The Landlord must refrain from prohibiting the Tenant from allowing her husband at the rental unit or on the residential complex to access the rental unit.
TST-65033-15 (Re), 2015 CanLII 99141 (ON LTB)
https://www.canlii.org/en/on/onltb/doc/2015/2015canlii99141/2015canlii99141.html
K.B (the 'Tenant') applied for an order determining that R.O and #.O.L (the 'Landlords'), or the Landlords' superintendent, or the Landlords' agent harassed, obstructed, coerced, threatened or interfered with the Tenant and substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenant or by a member of the Tenant's household.
- Section 22 of the RTA states: “A landlord shall not at any time during a tenant’s occupancy of a rental unit and before the day on which an order evicting the tenant is executed substantially interfere with the reasonable enjoyment of the rental unit or residential complex in which it is located for all usual purposes by a tenant or members of his or her household.”
- Section 23 of the Act states: “A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.” Harassment is not defined in the Act but it can be reasonably be defined as a course of action which a reasonable person knows, or ought to know would be unwelcome.
Tenant was awarded assorted costs and rent abatement due to the landlord's misconduct and interference of quiet enjoyment of property.
SOT-65713-15 (Re), 2016 CanLII 44371 (ON LTB),
Damages for breach of contracual obligation
The Board has jurisdiction to award damages for a Landlord’s breach of the Tenants’ contractual right to quiet enjoyment. The remedies available under section 30 (1) of the Act include “make any other order that it considers appropriate”. In Mejia v. Cargini, [2007] O.J. No. 437, the Divisional Court held:
Those cases and the grammatical and ordinary sense of the language giving the power to “make any other order that it considers appropriate” persuades us that the Tribunal has the power to award damages for the breach of contract of lease.
- Having considered the Landlord’s refusal to comply with his statutory obligations and the impact of the Landlord’s conduct upon the Tenants’ well-being, I will award the Tenants a collective damages award of $1,500.00.
- I will award the Tenants aggravated damages for their mental distress and anxiety, due to the incidents listed in paragraph 69. I do so having considered the impact of these incidents upon the Tenants
I consider the vulnerability of the Tenants with respect to their need to continue living in the rental unit, and in particular, the disability of A.
Supreme Court of Canada
The Supreme Court of Canada in R. v. Asante-Mensah, 2003 SCC 38 (CanLII), [2003] 2 S.C.R. 3, while cautiously upholding the arrest power under the Trespass to Property Act, has expressed concern about its potential for abuse.
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2071/index.do
Judgment of the court delivered by BINNIEJ
25 In recent years, provincial legislation such as Ontario's Trespassers to Property Act ["TPA"] has become the primary legal basis upon which private security firms and the like monitor and control activities on private properties.
26 The power of arrest is a potent weapon to put in the hands of landowners and occupiers to be wielded in protection of their private property. Whether or not force is used, the liberty of the person arrested is compromised. The TPA states expressly that there is no requirement for a judicial warrant. The right to arrest arises when the occupier has "reasonable and probable grounds" to believe the person arrested is a trespasser (s. 9(1)). The arrested person is then handed over to the police. When so much of the space where the modern community gathers, including airports and shopping malls, is in private hands, there is legitimate controversy about the nature and scope of the occupier's arrest power.
71 Many trespasses are of trivial importance. They are best handled by means short of an arrest. This was recognized in the 1987 Ontario Ministry of the Attorney General's paper This land is whose land?, supra, at pp. 14-15
An arrest is a grave imposition on another person's liberty and should only be attempted if other options prove ineffective. Further, an arrest attempt may lead to a confrontation more serious than the initial offence of trespass, and should be exercised with caution. Excessive force or improper use of the arrest power, may leave the occupier, or a designated agent, open to both criminal charges and civil liability.
72 Individuals who were wrongly arrested, or against whom unreasonable force was used, have successfully pursued prosecutions for assault as well as claims for civil damages against the arresting party. See, e.g., Chopra v. Eaton (T.) Co. (1999), 1999 ABQB 201 (CanLII), 240 A.R. 201 (Q.B.), at para. 147 (private security guard liable in damages for unnecessarily putting store customer in headlock and handcuffing him); Briggs v. Laviolette (1994), 21 C.C.L.T. (2d) 105 (B.C.S.C.) (private citizen liable in damages for bodily injury caused by slapping in face and poking with stick an individual he thought had broken his car window); and R. v. Freake (1990), 85 Nfld. & P.E.I.R. 25 (Nfld. Prov. Ct.) (building owner convicted of assault for using excessive force against 11-year-old suspected trespasser).
73 A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances: Cluett v. The Queen, 1985 CanLII 52 (SCC), [1985] 2 S.C.R. 216, at p. 222; R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56, at p. 64 (Laskin C.J., dissenting); Besse v. Thom (1979), 1979 CanLII 2791 (BC SC), 96 D.L.R. (3d) 657 (B.C. Co. Ct.), at p. 667, reversed on other grounds at (1979), 1979 CanLII 633 (BC CA), 107 D.L.R. (3d) 694 (B.C.C.A.); R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.), at p. 218. The same latitude will not necessarily be shown to an occupier who is under no duty to act and who instigates a confrontation with a trespasser.
74 Further, "reasonable force" in the context of the TPA may have to have regard not only to what force is necessary to accomplish the arrest, but also to whether a forcible arrest was in all the circumstances a reasonable course of action in the first place. I say this because determining whether "a defendant who claims to have been enforcing the criminal law is liable in tort necessarily involves taking into account what the criminal law states is or is not justifiable conduct" (emphasis added): G. H. L. Fridman, The Law of Torts in Canada (1989).
76 This dictum was approved and applied by this Court in Godoy, supra, at para. 18, and is quite consistent, it seems to me, with the advice mentioned earlier in the 1987 Ministry of the Attorney General's paper This land is whose land?, supra, that an arrest "should only be attempted if other options prove ineffective" (p. 14).
This reasoning in R. v. Asante-Mensah has been specifically adopted and applied by the Ontario Court of Appeal in the case of Tucker v. Cadillac Fairview Corp. [2005] O.J. No. 2921