Navigating Unrest: Legal Insights For Commercial Landlords And Tenants Amid Protests
Published date | 14 February 2024 |
Law Firm | WeirFoulds LLP |
Author | Ms Lisa Borsook, Cassidy Kunicyn and Natalie Bravo (Student-at-Law) |
In recent months, commercial landlords and tenants have grappled with the challenge of maintaining a secure retail and office environment amid protests that have unsettled customers and perhaps negatively affected businesses. It is a complex task to strike the balance between respecting peaceful expression and safeguarding the well-being of customers, stores, and employees. We propose to discuss the relevant legal considerations associated with managing protesters in commercial spaces. We will discuss, albeit briefly, some of the relevant provisions of the Criminal Code, but our focus will be on the other legal principles that might affect you as a landlord or a tenant.
- The Application of the Criminal Code
While some protesters may engage in peaceful demonstrations, sometimes criminal activities can occur during a protest, such as vandalism, destruction of property (or mischief)1, unlawful assembly2, theft3, harassment4, or other unlawful behavior. There are various offences in the Criminal Code that can potentially be applicable during a protest that becomes aggressive, violent or unlawful. For the purposes of this article, we will not get into an in-depth conversation on the provisions of the Criminal Code. The above is meant to highlight some considerations if a protest goes awry or activities escalate. If criminal activity is occurring or has occurred on your property (and for tenants, the property you are renting), it is best to call the police. This highlights the importance of establishing a positive working relationship with local law enforcement to help ensure the safety of the property. Landlords (and tenants) can proactively communicate with the police to provide information about potential protests and to coordinate security measures.
- Private Property and Trespass
In Ontario, the Trespass to Property Act5 (the 'TPA') provides the legal framework for addressing issues related to unauthorized access to private property. Under the TPA, it is an offence to: (i) enter onto private property without the legal authority or permission of the occupier; (ii) engage in prohibited activity while they are on the private property; and (iii) refuse to leave the private property when directed to do so. The offender may be liable to a fine of not more than $10,000.6 The term 'occupier' is defined in the TPA as including '(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'7. As a result, each of a landlord (the owner of the private property) and a tenant (the person responsible for control of its premises) might be considered an occupier under this legislation. And while a shopping centre is by its nature a quasi-public kind of private property, there may be circumstances in which an entry could be characterized as trespass.
A. Prohibiting Entry onto the Property in the First Place
An occupier can prohibit someone from accessing their private property through notice which can be given in various manners: (a) orally; (b) in writing; (c) by signs; or (d) a marking system as set out in the TPA.8 So, if a landlord wished to prohibit someone from accessing a building on its property, the posting of signs could be considered as having created such a prohibition. It is obviously more...
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