What is the test for continuing trespass?
British Columbia, Canada
The following excerpt is from Shaman v Meek, 2019 BCSC 9 (CanLII):
When one examines the origins and characteristics of trespass, one ascertains the immediate logic behind the concept of continuing trespass. Trespass is different from most other torts, notably from nuisance, in that the offending action is in and of itself the damage that gives rise to liability. As identified by Fleming at 50, “[i]ntentional invasions are actionable whether resulting in harm or not.” A trespass is occurring as long as the possessory rights of the plaintiff are being interfered with. As affirmed in [Roberts v. Portage la Prairie (City), 1971 CanLII 128 (SCC), [1971] S.C.R. 481] “a trespass continues so long as the defendant remains present upon the plaintiff's land”.
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