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Damages for Trespass

October 8, 2021

British Columbia

,

Canada

Issue

What is the range of damages available for trespassing in a residence?

Conclusion

Damages for the tort of trespass into a private home range from $2,100 to $11,000.

The tort of trespass to land consists of directly and unlawfully applying force to the land of another person. It arises when a person without lawful justification enters upon, remains upon or places or projects any object upon land with respect to which another person has a legal right of occupation and possession. Liability for trespass arises regardless of the intention on the part of the defendant to engage in wrongdoing, provided that the defendant in fact engages in conduct that constitutes trespass, and does so voluntarily. (Rossiter et al v. Swartz and Swartz)

Trespass to land is a tort that is actionable per se, and therefore does not require proof of actual damages. However, if a trespasser does cause an injury to the land which they have trespassed upon, the usual measure of damages is the amount by which the value of the land has decreased as a result of the injury. (Rossiter et al v. Swartz and Swartz)

When there is no actual damage to property, the award is usually for general damages in a token amount for “relatively innocuous” trespasses. “Egregious” behaviour may attract a more substantial award. (VonMaltzahn v Koppernaes)

The overriding principle is that damages for trespass are “at large,” meaning that in assessing damages, the court should take all relevant circumstances into account and reach an intuitive assessment of the loss which it considers the plaintiff has suffered. (Rossiter et al v. Swartz and Swartz)

In VonMaltzahn v Koppernaes, in the context of family law proceedings, the Court found the wife was liable for trespass when she entered the husband's property without permission, took pictures of the husband's possessions, opened drawers and closets, and removed items she wanted. The Court found that this was not a relatively innocuous trespass. The trespass continued for at least two days, other people were invited to join the trespass, and she assumed control over the property to do as she wished. The Court awarded damages of $5,000 for the trespass (approximately $5,315 in 2021 dollars).

In DiPierdomenico v. Esposito, the homeowners, a husband and wife, commenced a claim against the husband's cousin and the housekeeper, claiming that they are responsible for the removal of the cash, jewelry, and PVR system from the home. The Court found that the cousin was personally liable for the tort of trespass. The Court awarded punitive damages of $5,000 (approximately $5,500 in 2021 dollars).given the intrusion on the privacy of the family and the betrayal of a cousin.

In Tiger Calcium Services Inc v Sazwan, defendants, a husband, wife, and daughter, brought a claim for damages based on the execution of Anton Piller orders. As part of the Anton Piller orders, representatives of the Independent Supervising Solicitor for the Anton Piller Orders ("ISS") entered and occupied the defendants' residence and seized a large number of items, including personal items. The Court awarded the husband and the wife each a damage award of $3000 (approximately $3,125 in 2021 dollars). in respect of the trespass in the real property, and the daughter a damage award of $800 (approximately $833 in 2021 dollars). in respect to the trespass of real property.

In Gibson v F.K. Developments Ltd., the plaintiff had four mature Douglas Fir trees on her property, which provided shade and privacy to her backyard. A developer and neighbour cut down most of one of the trees without the owner's permission. The owner brought a successful action for trespass and conversion. The owner's claim for general damages was based on her claim to loss of privacy, shade, seclusion and the "violation of the sanctity of her own backyard". The Court awarded the owner $10,000 in general damages (approximately $11,000 in 2021 dollars)., which took into account the importance to the plaintiff of her backyard.

In Parsons v Waterloo Regional Police Services, the mother and father of an 11-year-old had a high-conflict relationship. While the mother was in police custody for a bail hearing, the father attended her residence without prior notice to her. He took various items of personal property which he claimed were needed for his immediate care of the child while the mother was in custody. The mother sued the father for theft of personal property. The Court found that the father was liable for trespass. The Court assessed damages of $1,915 (approximately $2,100 in 2021 dollars).based on the value of the items that the father took from the mother's home.

In A.M. v. Czerwonka, members of the Edmonton Police Service entered the Plaintiffs' home without permission, explanation or warrant. The Court awarded damages of $6,500 for the trespass and assault to the plaintiff A.M (approximately $8,290 in 2021 dollars). The Court also awarded damages of $5,000 (approximately $6,340 in 2021 dollars).for the insult to the plaintiff S.K.K. and the trespass on her house.

Law

In Rossiter et al v. Swartz and Swartz, 2013 ONSC 159 (CanLII), Justice Chappel articulated the principles of the tort of trespass to land:

[21][...] The tort of trespass to land consists of directly and unlawfully applying force to the land of another person. It arises when a person without lawful justification enters upon, remains upon or places or projects any object upon land with respect to which another person has a legal right of occupation and possession.[2] Liability for trespass arises regardless of the intention on the part of the defendant to engage in wrongdoing, provided that the defendant in fact engages in conduct that constitutes trespass, and does so voluntarily.[3] However, the interference with the property must be direct, rather than indirect or consequential.[4] Where the entry upon or occupation of the property is intentional, it is actionable even if the trespasser honestly but mistakenly believed that they had a lawful right of entry or that the land was theirs.[5] The commencement of legal proceedings claiming ownership or a right of occupation of the land does not in and of itself create a colour of right that shields a defendant from liability in trespass.[6] Furthermore, trespass is committed where a defendant initially enters or occupies land with permission, but then remains after permission is revoked or engages in conduct that exceeds the scope of the permission.[7] However, in these circumstances, the trespasser must be given a reasonable period of time to remove himself or herself from the property.[8]

Chappel J. outlined the principles applicable to the assessment of damages for the tort of trespass:

[26] Trespass to land is a tort that is actionable per se, and therefore does not require proof of actual damages. However, if a trespasser does cause an injury to the land which they have trespassed upon, the usual measure of damages is the amount by which the value of the land has decreased as a result of the injury.[10] The cost associated with restoring the property to the state it was in prior to the commission of the trespass is an appropriate means of carrying out the damages assessment if the court is satisfied that this cost represents a reasonable estimate of the diminished value of the property.[11] Where the cost of repair is being considered in assessing damages, the court must satisfy itself that those costs are reasonable, practical and fair in the circumstances.[12] In considering this issue, some of the factors which the court must consider are:

1. The cost of repairs as compared to the reduction in the value of the property resulting from the trespass;

2. The time, logistics and property damage involved in carrying out the repair work;

3. The likely success of the repair efforts;

4. The reasonableness of the plaintiff’s wish to restore the property to its former state and the actual benefit to the plaintiff of the restoration work, as compared to the cost to the defendant of carrying out that work over and above the decreased value of the property;

5. The use to which the plaintiff made the property, and the impact which the trespass had on that use.[13]

[27] The principles set out above regarding assessment of damages for trespass provide some guidance to the court in carrying out the damages assessment. The overriding principle, however, is that damages for trespass are “at large,” meaning that in assessing damages, the court should take all relevant circumstances into account and reach an intuitive assessment of the loss which it considers the plaintiff has suffered.[14] The process of assessing damages in trespass is therefore not a precise and exact science requiring the judge to engage in complex calculations or analyses regarding the change in value of the land.

[28] An owner or person who has a lawful right of occupation or possession of property and who has been deprived of the property as a result of trespass is also entitled to general damages in a reasonable amount for the use of the property during the period of their dispossession.[15] The reasonable rental value of the property is an appropriate yardstick to use in assessing these damages.[16]

In VonMaltzahn v Koppernaes, 2018 NSSC 192 (CanLII), in the context of family law proceedings, the Court found the wife liable for invasion of privacy when she entered the husband's property without permission, took pictures of the husband's possessions, opened drawers and closets, and removed items she wanted. The Court found that the wife's actions caused the husband great distress, annoyance, and worry. Her removal of possessions from his property was planned and deliberate. Her return of the objects was delayed and without genuine apology. The Court awarded damages of $7,000 for invasion of privacy:

Invasion of Privacy

[65] This tort does not require proof of damage. How a court might determine the amount of an award was discussed in Doucette v. Nova Scotia, 2016 NSSC 25. In that case Justice Boudreau quoted from Jones v Tsige 2012 ONCA 32 (CanLII), [2012] O.J. No. 148 (Ont. C.A.) :

87 In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range as up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:

1. the nature, incidents and occasion of the defendant’s wrongful act;

2. the effect of the wrong on the plaintiff’s health, welfare, social business or financial position;

3. any relationship, whether domestic or otherwise, between the parties;

4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and

5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.

[66] Ms. Koppernaes’ actions caused Mr. VonMaltzahn great distress, annoyance and worry. Her removal of possessions from his property was planned and deliberate. Her return of those objects was delayed and without genuine apology. Ms. Koppernaes must pay Mr. VonMaltzahn $7,000.00.

On the tort of trespass, the Court awarded the husband general damages of $5,000 for her trespass:

[59] When there is no actual damage to property, the award is usually for general damages in a token amount for “relatively innocuous” trespasses. (McInnis v. Stone, 2016 NSSC 69; Bourgoyne v. Hutton, 2016 NSSC 60)

[60] “Egregious” behaviour may attract a more substantial award.

[61] This was not a “relatively innocuous” trespass. The trespass to Mr. VonMaltzahn’s property continued for at least two days, other people were invited to join Ms. Koppernaes as she trespassed on that property. She assumed control over the property to do as she wished. Ms. Koppernaes must pay Mr. VonMaltzahn $5,000.00 in general damages for her trespass.

In DiPierdomenico v. Esposito, 2017 ONSC 7391 (CanLII), the homeowners, a husband and wife, commenced a claim against the husband's cousin and the housekeeper, claiming that they are responsible for the removal of the cash, jewelry, and PVR system from the home. The Court found that the cousin was personally liable for the tort of trespass. The Court awarded punitive damages of $5,000 given the intrusion on the privacy of the family and the betrayal of a cousin:

[55] I am satisfied that Esposito is personally liable for the torts of trespass and conversion. On a balance of probabilities, I find that Esposito himself entered the home the morning of June 8, and he and Baptiste planned and acted in concert to organize the theft. In any event, whether he himself entered the home and removed the property, or he instructed or encouraged someone else to do so, he either acted individually or as a joint tortfeasor. As the only tortfeasor known to the court, he bears full responsibility for all the damages suffered by the plaintiffs as a consequence of the incident. Where individuals engage in a common action that is unlawful in itself, the tortious action can be imputed to the other tortfeasors, where there has been some element of conspiracy or agreement to commit the intentional tort. I find this to be the case here, as Esposito and Baptiste acted and planned together to commit these torts: Fitzpatrick v. Orwin, 2012 ONSC 3492 (SCJ) (CanLII) at paras. 118-125.

[56] With respect to trespass, I find that Esposito entered into the home of the plaintiffs to remove the property, intentionally intruding onto the property without permission and so committing the tort of trespass: Fitzpatrick, paras. 135-138.

[...]

[60] The plaintiffs ask for punitive damages, which they argue are warranted in the present case due to the “high-handed, malicious, arbitrary or reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour:” Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII) at para. 94. Punitive damages may be awarded for trespass for fraudulent, malicious, or calculated conduct, where the defendant “has shown a wanton disregard for the plaintiff’s rights as property owner”: Pyper v. Crausen (2008), 37 C.E.L.R. (3d) 257 (Ont. S.C.) at para. 44.

[61] Punitive damages are not compensatory, but provide for retribution, deterrence and denunciation. Punitive damages must take into account any other fines or penalties imposed on the defendant to ensure that the misconduct does not go unpunished, or where the penalty is seen to be inadequate at achieving these goals. In the present case, there were no criminal charges laid against Esposito. I award punitive damages given the intrusion on the privacy and security of Esposito’s cousin and his family, the important sentimental value of the jewelry which was made known to Esposito within six days of the theft; and the betrayal of a cousin and misuse of family ties. DiPierdomenico’s evidence was that he trusted Esposito because he was a family member. Esposito’s conduct must be denounced. I award $5,000 in punitive damages.

In Parsons v Waterloo Regional Police Services, 2013 CanLII 54059 (ON SCSM), the mother and father of an 11-year-old had a high-conflict relationship. While the mother was in police custody for a bail hearing, the father attended her residence without prior notice to her. He took various items of personal property which he claimed were needed for his immediate care of the child while the mother was in custody. The mother sued the father for theft of personal property. The Court found that the father was liable for trespass. The Court assessed damages of $1,915 based on the value of the items that the father took from the mother's home:

23. Defence counsel cited Beatty v. Reitzel Insulation Co., [2008] O.J. No. 953 (Sm. Cl. Ct.). The law of trespass is reviewed at paragraphs 28 to 32 of that decision. In this case, I have no hesitation in finding Gruber liable for trespass. He did not have consent to enter the property on June 26, 2010. I reject his suggestion that he had a blanket consent from Parsons to enter the property even if she were absent and even without her knowledge.

[...]

49. As against Gruber, I allowed damages assessed at $1,915. That was based on the plaintiff’s submission that he should be liable for the items taken and which she listed in Exhibit 1, Tab 11. She requested an award of $4,000 which I understood to be based on a rounded amount taken from her estimate of the “original value” of the listed items. I found that the appropriate measure of damages was the actual cash value of the items, which took me to the “replacement value” part of her list as I found that despite her terminology it was her attempt to provide actual cash values. Generally speaking I found her figures to be fair and conservative estimates. My specific findings were as follows (using the chart at Tab 11).

In Tiger Calcium Services Inc v Sazwan, 2019 ABQB 327 (CanLII), defendants, a husband, wife, and daughter, brought a claim for damages based on the execution of Anton Piller orders. As part of the Anton Piller orders, representatives of the Independent Supervising Solicitor for the Anton Piller Orders ("ISS") entered and occupied the defendants' residence and seized a large number of items, including personal items. The Court awarded the husband and the wife each a damage award of $3,000 in respect of the trespass in the real property, and the daughter a damage award of $800 in respect to the trespass of real property:

[39] As for the submission that there can only be one claim made in respect of trespass to real property, I consider that the better view is that a claim can be advanced by anyone who has a lawful interest in the property and whose interest has been interfered with by the trespass. All three Applicants resided in this property and it is clear that during the course of the seizure proceeding their lawful occupancy/possession/ownership interests were disturbed (more obviously in the case of Mr. Hu, since he was present at the time). Clearly, ownership of the property is not required to establish trespass. On the other hand, it would not be available to a visitor to claim trespass to a property in which they had no ownership, possessory or occupancy entitlement. In any event, if I am incorrect in this analysis, and the Plaintiffs’ position is the correct one in law, I will award a separate amount to each of the Applicants in respect of trespass to their real property. The total of those three amounts would then have to be awarded, on appeal, to one individual. The determination of the appropriate individual itself highlights the difficulty with the position taken by the Plaintiffs, since in this case I understand there are two registered owners and three people in lawful occupation/residency of the real property in question.

[40] Of the three Applicants, Ms. Zhang was least affected by the execution of the Orders, as she was not present at the residence when the trespass occurred. Her occupancy/possession/ownership of the real property and the temporary deprivation of a few items of her personal property had minimal effect on her and can only attract nominal damages. I award her $1000, $800 attributable to the trespass on her interest on the real property and the remainder to the trespass on some items of her personal property.

[41] The effect on Mr. Hu and Ms. Hu was more significant, in that Mr. Hu was present during the execution of the Orders, both had the inconvenience and extra work required to restore the premises to their former tidy condition following the execution of the Orders, and for a period of between two and three weeks both were deprived of personal property, at least some of which they required during that time.

[42] I conclude that Mr. Hu is entitled to $3000 in respect of the trespass to his interest in the real property, and $2000 for the trespass to his personal property. I conclude that Ms. Hu, having not been the subject of the Orders, is entitled to $3000 in respect of the trespass to her interest in the real property and the $4000 in relation to the trespass to her chattels.

In Gibson v F.K. Developments Ltd., 2017 BCSC 2153 (CanLII), the plaintiff had four mature Douglas Fir trees on her property, which provided shade and privacy to her backyard. A developer and neighbour cut down most of one of the trees without the owner's permission. The owner brought a successful action for trespass and conversion. The owner's claim for general damages was based on her claim to loss of privacy, shade, seclusion and the "violation of the sanctity of her own backyard". The Court awarded the owner $10,000 in general damages:

[36] The plaintiff separates her damages claim for general damages from her claim for special damages. Her general damage claim is based on her claim to loss of privacy, shade, seclusion and the “violation of her sanctity in her own backyard.”

[37] The plaintiff’s backyard had a particular importance to her. It was in part its privacy that motivated her and her late husband to purchase the property. It is where he spent his last months. The cutting of the tree did cause a partial loss of privacy. As noted earlier given there were only four trees, the loss of one is significant. It is the impact of the trespass and tree removal that must be considered when assessing damages.

[...]

[52] In my view an award of $10,000 for general damages is appropriate, taking into account the importance to the plaintiff of her backyard, the fact that only a single tree was removed but it was substantial, was one of only four, and the fact that its removal has left a large gap in the trees partially screening the back of the plaintiff’s property; and as well taking into account the authorities referred to and the dates of those authorities relating to compensatory damages.

In A.M. v. Czerwonka, 2007 ABQB 313 (CanLII), members of the Edmonton Police Service entered the Plaintiffs' home without permission, explanation or warrant. The Court awarded damages of $6,500 for the trespass and assault to the plaintiff A.M.:

[49] A.M. did not require, nor seek, any medical attention. He claims no loss of pay and only nominal special damages. He is, therefore, in the position of a plaintiff who has endured a modest amount of embarrassment, none of which has cost him any provable loss of community stature nor loss of opportunity at work. The police committed trespass and assaulted A.M., at a minimum by pushing or pulling him out of the doorway, and by handcuffing him, both of which flowed from a situation where the police had no reason to be at the Plaintiffs’ home. I award A.M. general damages for trespass and assault of $6,500.00.

The Court awarded damages of $5,000 for the insult to the plaintiff S.K.K.:

[52] The fact that the tactical unit entered the property and a machine gun was in plain view had a significant impact on S.K.K. She is entitled to damages in the amount of $5,000.00 for the insult to her and the trespass on her house.

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