Trespass to Property: The Wrongful Interference with Land Including Things Affixed Thereto | Gutoski Legal Services


Last Updated: August 22 2026

Question:What counts as civil trespass to land in Ontario, and can I recover damages even if there was no major harm?

Answer:Gutoski Legal Services can help Ontario homeowners and tenants understand when an uninvited person’s direct, physical presence on your land (or a substance/object placed or propelled onto it) becomes trespass to land, including situations where intent is not required because the act must be voluntary and unlawful; where some interference is proven, courts can award damages even if exact loss is hard to quantify, but if no evidence of harm is available you may be limited to nominal damages, while Ontario also treats certain trespass as a provincial offence under the Trespass to Property Act, R.S.O. 1990, c. T.21 and in some break-and-enter scenarios under the Criminal Code of Canada, R.S.C. 1985, c. C-46;  for practical next steps and document planning with a paralegal in Hamilton and across Ontario, call (289) 902-0227.

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Protections Against Property Interference

Trespass usually brings to mind crime; think break & enter, but the law treats trespass to property as both a civil tort and a prosecutable offence. On the offence side, trespass is addressed in the Trespass to Property Act, R.S.O. 1990, c. T.21, and, where appropriate, the Criminal Code of Canada, R.S.C. 1985, c. C-46. On the civil side, trespass to property is expansive, capturing presence on and interference with the land owned or in the possession of another person without consent or, even with invitation, oversteps the permission or uses the land in an unauthorized manner.

Note: Please contact Gutoski Legal Services by phone at: (289) 902-0227 to discuss any specific questions that you may have.

The Law

The Court in Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, set out a straightforward explanation of tortious trespass, by noting:


[52]  With respect to the claim of trespass to land Lederman J. in Hudson’s Bay at para. 9 states as follows:

Clerk and Lindsell define trespass to land, at p. 837, as consisting of “any unjustified intrusion by one person upon land in the possession of another”.  Halsbury’s, Vol. 45, para. 1384 states that “every unlawful entry by one person on the land in possession of another is trespassed for which an action lies…

[53]  The elements for the claim of trespass to land are set out by Crane J in Grace v. Fort Erie (Town), 2003 CanLII 48456 (ON SC), [2003] O.J. No. 3475 (SCJ) at para. 86:

The elements of trespass have been described as follows:

  • Any direct and physical intrusion onto land that is in the possession of the plaintiff, (indirect or consequential interference does not constitute trespass).
  • The defendant’s act need not be intentional, but it must be voluntary.
  • Trespass is actionable without proof of damage.
  • While some form of physical entry onto or contact with the plaintiff’s land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto the plaintiff’s land can constitute trespass.

Trespass to property, also known as trespass to land, can arise in deliberate ways or by accident. In Gross v. Wright, [1923] S.C.R. 214, the trespass was intentional, involving an attempt to claim a neighbour’s space. By contrast, trespass may also occur innocently, such as when a boundary is crossed unintentionally, as illustrated in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where a neighbour’s trees were mistakenly removed.

Damages for Trespass

Determining the extent of loss from trespass is not always straightforward. Where trespass occurs but no real harm follows, courts usually respond with only a very small award. The Court of Appeal considered this question of trespass damages in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, pointing out the difficulty in proving damages with exactness and stating:


[61]  It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence.  Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible.  Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases.  The controlling principles were clearly expressed by Finlayson J.A.  of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J.  No.  3403, 112 O.A.C.  138, at para.  75, leave to appeal to S.C.C.  refused, [1998] S.C.C.A.  No.  516:

I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances.  That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated.  The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work.  However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.

See also Cadbury Schweppes Inc.  v. FBI Foods Ltd., 1999 CanLII 705 (SCC), [1999] 1 S.C.R.  142, at para.  99; 100 Main Street East Ltd.  v. W.B.  Construction Ltd.  (1978), 1978 CanLII 1630 (ON CA), 20 O.R.  (2d) 401 (C.A.), 88 D.L.R.  (3d) 1, at para.  80; Penvidic Contracting Co.  v. International Nickel Co.  of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R.  267, at pp.  278-79.

Conclusion

Trespass to property is very wide in scope; and because trespass is a strict tort, a person can be held liable even if the trespass was accidental. That said, without wrongful intent and without real harm, damages awarded are usually minimal. Still, even an innocent trespass can sometimes cause significant loss.

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