Trespassing in Ontario is mainly governed by the provincial Trespass to Property Act (TPA). This statute sets out when entry onto property is unlawful, what powers property owners have, and the penalties for violations.

What counts as trespassing?

A person commits trespass if, without legal authority or permission, they:

• Enter a place where they are not allowed
• Do something on the premises that is not allowed, or
• Stay on the premises after being told to leave

Someone can be sued and found liable for trespassing even if there is no proof of damage. In a trespass case, if the incident was for particularly malicious purposes, such as to intimidate the landowner, even punitive damages may apply.

That said, however, any person can go onto the private property of another during daylight hours if permission to do so is implied. For example, if there is a path up to the front door of a residence and there are no signs warning people to stay off the land, there is implied permission for people to enter, such as a letter carrier. This implied permission can, of course, be revoked instantly by the person in charge of the property. If you are told to leave, you must leave or you could be sued for trespass.

Ontario Trespass to Property Act

The purpose of Ontario’s Trespass to Property Act is to give greater control over entry or use of an owner’s or tenant’s premises, to provide penalties and remedies for breaches of the legislation, and to facilitate the recreational use of private lands.  Under the Act, “premises” does not simply mean building structures. It is broadly defined to include land, water, buildings, portable structures, and vehicles. This means that trespass law applies to almost any type of property.

Entry to certain premises is automatically prohibited even without the owner giving notice of the prohibition. These premises include:

• Farmland, gardens, orchards, or cultivated land
• Fenced or clearly enclosed areas

What are the legal consequences of trespassing?

If it is reasonable to assume that a person might be trespassing, they can be arrested without a warrant by either police, the owners of the premises, or someone acting on behalf of the owner. Police can also arrest someone who has just left the premises if that person refuses to give their name and address or give false information.

Trespassing is a provincial offence. The consequences depend on the extent of the case. Minor cases are often handled through a ticket, while more serious or repeated incidents may proceed through court with higher penalties (max $10,000 fine). A court may impose harsher fines where certain aggravating factors are present, such as where the person remains on the property or returns more than 24 hours after being told to leave, or where the court believes the person is likely to trespass again.

The law, in most cases, does not take away an owner’s or tenant’s right to sue for trespass, but usually grants the government the authority to seek its own sanctions as a way to control this sort of behaviour.

Penalties for trespassing may include:

• Fines: Offenders may be fined
• Damages: If a person has suffered damage caused by the person convicted during the commission of the offence, the court may determine the damages and make a judgment for damages against the person convicted in favour of the person who suffered the damage.
• Costs: The court may determine that costs be paid by the person convicted.

Suing in Small Claims Court

The person convicted of the offence may be sued for damages and costs in the Small Claims Court and this will be considered a judgment or order of that court for the purposes of enforcement. However, If the court awards damages the person receiving the damages cannot later sue in court for damages.

Are there defences you can use against trespassing?

There are a number of defences available to a person charged under provincial trespass legislation. You may not be guilty of trespass if you reasonably believed you had a right to be there (e.g., thought you owned the premises or thought you had permission to be there). There is also an implied permission to approach a door of a building unless there is a notice warning people to stay away.

When is trespassing criminal behaviour?

Although there is no jail sentence under the legislation itself, trespassing can escalate into more serious legal issues if combined with other conduct. For example, damaging property or entering with intent to commit a crime could lead to charges under the Criminal Code, such as mischief or break and enter.

Entering onto private land at night is aso treated much differently, and implied permission does not extend to trespassing at night, which is a criminal offence. The Criminal Code makes it an offence to loiter or prowl at night on the property of another person near a dwelling-house situated on that property. “Night” is defined by the Criminal Code as between 9:00 p.m. and 6:00 am. “Dwelling-house” is defined by the Criminal Code as a permanent or temporary residence and anything attached to it.

For more information on criminal offences, refer to the Criminal Law section of Legal Line.

What can owners do to prevent trespass?

An owner can signal that trespassers are not allowed on their premises by:

• Giving them verbal or written notice
• Posting clear signs such as “No Trespassing” or indicating what activities are allowed or prohibited
• Using official markings, such as:
  • Red markings to show no entry at all
  • Yellow markings to show limited entry (only certain activities allowed)
• Using fences or barriers to show that entry is not permitted

Once proper notice is given, an owner can enforce it by asking a person to leave, calling the police, or in some cases detaining the person until police arrive.

More information

For more information on trespassing, view the Trespass to Property Act. For legal help, contact a lawyer.

								
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