Website Case Law
Trespass to Property Act, R.S.O. 1990, c. T.21
Trespass to Property Act (TPA)
Supreme Court of Canada Interpretation of TPA Occupier Rights
Canadian Pacific Railway Co. v. Vancouver (City) 2006 (SCC)
https://canlii.ca/t/1mm2r
SCC understanding of property contained within Canadian Pacific Railway v Vancouver (City) is compatible with the existing jurisprudence on this topic: Thus the important property rights—according to the Court—are the right to exclude (trespass) and the right to the primary or historical use of the property. Notably, the Court seems to discount the idea that the right to set the agenda is essential to ownership, or even a property right at all. (Take away: Care home facility operators set the agenda of rules but that does not imply ownership (occupier) rights)
R. v. Le. (2019) (SCC)
https://canlii.ca/t/j0nvf
Police Officers are considered trespassers if they are not the invited guest of “occupant” or enter the property without authority such as a warrant. (Take away: the SCC upholds that even police can not contravene occupier sacrosanct authority for the premises they occupy.)
Ontario Courts’ Rulings: TPA Occupier Rights
(facility owners or operators are not occupiers)
Laurier Homes (27) Ltd. v. Brett, 2005 (ON SC)
https://canlii.ca/t/j0nvf
[32] It is perhaps an underappreciated fact that a landlord’s interest is non-possessory. When an owner of land leases his or her land, the owner has a reversionary interest and not a right to possession during the term of the lease.
Giouroukos v. Cadillac Fairview Corp. Ltd. et al, 1983 (ON CA)
https://canlii.ca/t/g1gv7
[33] So long as the lease continues in effect, possession is vested in the tenant who, as a normal consequence of the landlord-tenant relationship, has control over and the power to exclude others from the leased property. The landlord's interest is non-possessory and remains so until the lease is terminated...
Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 (ON SC)
https://canlii.ca/t/1vv77
(Cunningham case is the most frequently cited case in rulings involving the TPA.)
D.S. FERGUSON J.: --page 11 "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.
In conclusion, I find that the landlord (owner) 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.
R. v. Webers, 1994 (ON SC)
https://canlii.ca/t/1wctf
O’CONNOR J.: Was Mr. Webers a trespasser? [56] ...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.
Three police officers were injured while trying to trespass Mr. Weber. The judge Mr. Weber was not a trespasser and dismissed all charges.
Gentles v. Intelligarde International Incorporated, 2010 ONCA
https://canlii.ca/t/2dk7k
[50-54] Discuss “occupant” right to invite guest and right of person with conferred authority to enter occupant’s property,
[64] Nor can the escalation of vulgarity and aggressiveness attributed to Gentles and Francis contribute to the required reasonable grounds. The Gentles Court the mere fact the plaintiffs therein were ‘uncooperative, vulgar and belligerent’ did not make them trespassers [at paras 65, 71 and 79].
Bracken v. Fort Erie (Town), 2017 ONCA)
https://canlii.ca/t/h5tr9
Judge ruled that trespass for ‘one year’ was far in excess of whatever immediate threat, real or imagined, the notice was intended to ameliorate.
Judge sets out that protesting, bringing concerns to an authority, truth seeking is NOT justifiable grounds for the government to breach a Charter right. - a breach can't be saved by section 1 which allows for breaching of Charter rights were reasonable and warranted if for a good purpose.
Judge ruled that Occupational Health and Safety was not authority for issuance of trespass.
Landlord Tenant Board, TPA and Occupier Rights
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 an accommodation paying resident.
Pursuant to section 22 of the Residential Tenancy Act, 2006 the LTB has upheld the right of occupiers to quietly enjoy their premises without interference from the landlord.
Section 23 of the Act protects the resident 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.
Good faith intentions in serving Trespass Notices are considered contrary to the law. 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 (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.
SWL-03896-17 (Re), 2017 CanLII 60355 (ON LTB)
It is noteworthy in this case that a person charged with aggressive behavior 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 of 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.”
21. 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.
15. 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.
17. 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)
57. Threatening to charge guests of the Tenant with trespassing is clearly unreasonable behavior as is demanding a tenant move out without proper notice.
58. 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.
60. 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
2. 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”.
2. 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 orders 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)
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. 4. 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.” 5. 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. KB 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),
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. 82. 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.
79. 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 TenantsI 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.