Trespass to Property (LTB)

From Riverview Legal Library Services


Trespass to Property Act, R.S.O. 1990, c. T.21

1 (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”)


2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000. R.S.O. 1990, c. T.21, s. 2 (1); 2016, c. 8, Sched. 6, s. 1.

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).

Carr v Ottawa Police Services Board, 2017 ONSC 4331 (CanLII)

[24] The allegations against the police officers include that their conduct resulted in breaches of Roxanne’s Charter rights. Roxanne seeks damages for those breaches. Lastly, Roxanne claims punitive damages against the defendants on the basis that their conduct was callous and high-handed.

Issue No. 1 - Did the police have authority, under either of the provincial Trespass to Property Act or the Criminal Code of Canada, to arrest Roxanne without a warrant?

[25] It is undisputed that Roxanne’s arrest was carried out without a warrant. Under both the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”) and the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”), police have the authority, in limited circumstances, to make an arrest without a warrant.

a) Arrest Without a Warrant Under the TPA

[26] The offence of trespass to property involves entering premises without the permission of the occupier and/or remaining on premises when asked by the occupier to leave. At issue is whether the individual has the right or legal authority to enter and/or remain on the premises: see section 2.

[27] To make an arrest without a warrant pursuant to the TPA, a police officer must have “reasonable and probable grounds” to believe that the individual is on the premises in contravention of the statute: see section 9(1).

[28] Did Adlard and Cybulski have reasonable and probable grounds to believe that Roxanne was on and/or refused to leave the premises without “colour of right” or “authority conferred by law”, in contravention of section 2 of the TPA? For the following reasons, I find they did not:

  • As a rent-paying sub-tenant in the home, Roxanne was a licensee and had the right to remain in the home;
  • As a licensee, Roxanne was entitled to notice from Morgan of the requirement to leave the home;
  • There is no evidence that Morgan gave Roxanne notice to leave the home; and
  • There is no evidence that Morgan informed Adlard and Cybulski that he gave Roxanne notice to leave the home.

[29] In summary, in the absence of reasonable notice from Morgan of the requirement to leave the home, Roxanne was, as a rent-paying sub-tenant, entitled to remain on the premises.

  • Roxanne was, at a Minimum, a Licensee and Entitled to Remain

TET-01936-09 (Re), 2010 CanLII 25302 (ON LTB)

3. Pursuant to Board order TEL-25115, issued July 22, 2009, the tenancy was terminated for non-payment of rent. The Tenants did not void this order by paying the arrears to the Landlord. RTC had the right to file order TEL-25115 with the Sheriff on or after August 2, 2009 in the event of non-payment. However, RTC did not file order TEL-25115 with the Sheriff.

7. The Tenants vacated the rental unit on September 3, 2009 as a result of the N12 Notice. The Tenants initially told the property management company retained by the Landlord that they would vacate the rental unit by August 31, 2009. However, the Tenants were not finished packing by August 31, 2009. The property management company agreed to extend the deadline until September 1, 2009. On September 2, 2009 the Tenants were still loading their van. GB, who works for the property management company, changed the locks on the rental unit on September 2, 2009 without giving the Tenants a key, but told the Tenants they could have access to the rental unit for the rest of the day to finish packing. He asked the Tenants to call him when they were finished packing. Not having heard from the Tenants, he returned to the unit at approximately 2 a.m. and discovered that the Tenants were still inside the rental unit. He asked them to leave, and then locked the door. The Tenants spent the rest of night in their truck parked outside of house.

Determinations:

2. The Landlord’s agent altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenants replacement keys.

3. The Landlord’s agent entered the rental unit illegally

4. The Landlord’s agent substantially interfered with the reasonable enjoyment of the rental unit or residential complex by the Tenants.

Cunningham v. Whitby Christian Non-Profit Housing Corp., 1997 CanLII 12126 (ON SC)

This is an application by the tenant for an abatement of rent under s. 113(1)(f) of the Landlord and Tenant Act, R.S.O. 1990, c. L.7.

The tenant alleges that the landlord breached the implied covenant for quiet enjoyment by harassing her with warning letters and other conduct by removing her right to a parking spot on the renewal of her lease, and by serving a notice on her boyfriend pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21, advising him that he was prohibited from entering the rental project. This last ground is the primary complaint and raises a difficult and apparently unresolved issue concerning the existence and interface of a right of a residential tenant to invite guests to visit or occupy the rented premises and a right of the landlord to restrict entry by such persons.

[...]

First, I note that the shopping centre trespass cases cited (which are reviewed in Russo v. Ontario Jockey Club (1987), 1987 CanLII 4356 (ON SC), 62 O.R. (2d) 731, 46 D.L.R. (4th) 359 (H.C.J.)), did not involve a contest between the landlord and an invitee of a tenant. In those cases the contest was between the landlord and a picketer who was not invited by the tenant. 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: Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), (1976) 2 S.C.R. 520, 62 D.L.R. (3d) 749. 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.

[...]

I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.); Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.).

I recognize that at least with respect to s. 2(1)(b) it could be argued that there is no "right or authority conferred by law" because here the tenant does not have the right to invite an occupier to stay in the premises; however, I think this is academic and that the invitee would still have a defence. The lease and s. 2(1)(a) clearly provide the tenant with the right to invite guests and it would not be appropriate in a prosecution under the Trespass to Property Act to make an inquiry as to whether the invitee has become an occupant rather than a temporary guest. Again, that should be resolved in a proceeding between the tenant and landlord. 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.

I note that the landlord could not obtain an order under the Landlord and Tenant Act to evict the non-tenant occupier, Mr. Witter. A separate action would have to be brought: Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.); Phillips v. Kranjcec (1977), 4 C.P.C. 91 (Ont. H.C.J.).


Seberras v. Shende (1990), 10 R.P.R. (2d) 52 (Ont. Dist. Ct.)

17 The situation here appears to have been envisaged by D. Lamont, Q.C., in 4th ed. of Residential Tenancies (Toronto: Carswell & Co., 1983); at p. 120 it states: "It is suggested that landlords' [sic] only remedy is to consider the subtenant or assignee as a trespasser and to commence an ordinary action for possession." This was upheld in Days vs. Feder Ont. Co. Ct. 13 April 1979 (unreported).

22 While the occupants have had since October to have vacated, since this matter is not under the Landlord and Tenant Act, but is an ordinary action, while I will direct that a writ of possession may issue, on the basis that defendants Stacey Harrison and Kim Shende are trespassers and that the purported sublet at best could not extend past February 28, 1990, the occupants may remain until April 30, 1990 (to pay rent to the plaintiff, since the lease between Deborah Lindenas and James Lindenas expires on February 28, 1990) — payment of rent to the plaintiff will not create any landlord and tenancy relationship between the plaintiff and these occupants. If the occupants fail to do so, the plaintiff may apply to me on 3 days' written notice to vary my order. As long as the occupants may rent and comply with their obligation to treat the premises in a reasonable manner, the plaintiff will take no steps under the writ of possession, until May 1, 1990.