Dealing With A Flagrant Trespass: How To Protect Your Property Rights In Canada

Property rights are "sacrosanct" in Canada... or at least that is what courts tell us. The practical reality is somewhat different. This was highlighted a recent incident in Calgary where a landlord had her home declared an "embassy" by a tenant who refused to vacate. The situation made headlines across the country. The incident brought attention to the rise of freemen-on-land, a group whose legal tactics are summarized in Meads v. Meads, 2012 ABQB 571. However, the incident was also emblematic of a problem that can arise for any commercial landlord or property owner in Canada: how to deal with a flagrant trespasser who refuses to leave.

Such situations raise a variety of legal and practical problems. Not least of which is the potential for escalation from a simple trespass to something much more serious. Indeed, recent violence in New Brunswick arising out of a blockade of land due to fracking exploration demonstrates the potential volatility of these situations.

This post identifies some of the the issues you will need to address. However, these situations are, by their nature, time sensitive and fact specific. Seeking legal counsel as soon as possible will always be a prudent first step.

1. Understand your position

   In some circumstances, such as the two highlighted above, it is clear that the land owner is "in the right" and the trespasser(s) are "in the wrong", in the eyes of the law at least.

   Other circumstances are less straightforward. For example, termination of commercial tenancies often involve a host of complex contractual issues. See: 1497777 Ontario Inc. v. Leon's Furniture Ltd, 2003 CanLII 50106 (ON CA). Similarly, picketing in labour disputes raises a variety issues that need to be considered and resolved. See: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8.

2. Next steps

   Assuming you are "in the right" and the trespasser(s) are in fact trespassing, you are faced with the practical problem of getting the trespasser(s) off of your property. Unfortunately, a phone call to the local police is unlikely to solve your problem.

   Police in Canada generally view circumstances such as these as a "civil" matter between two private parties. They are unlikely to get involved without a court order. Which is to say, if you want the trespasser(s) off your property, you need to get an injunction.

3. The Injunction

   An injunction will require you to establish: 1) You have a serious case to be tried, i.e. your case is...