License to Occupy (TPA)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-20
CLNP Page ID:	915
Page Categories:	[Trespass to Property]
Citation:	License to Occupy (TPA), CLNP 915, <5p>, retrieved on 2024-04-20
Editor:	Sharvey
Last Updated:	2023/12/04

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.

R. v. M. Keeper, 2014 ONSC 3537 (CanLII)

[53] The Crown concedes that if an officer is not acting in lawful execution of his duty when conducting an arrest, the arrestee is entitled to use reasonable force to resist the officer. The trial judge, in his analysis, found that the only power of arrest available to Cst. Mosquito on the day in question was under s. 2(1)(b) the Trespass to Property Act (the”Act”). If this section of the Act did not apply on the First Nation, Cst. Mosquito did not have a power of arrest and therefore was not acting in the lawful execution of his duty when arresting Fabian Strang.

...

[66] Sections 2 and 9 of the Act are not directed at regulating the possession of land on reserves or anywhere else. They do not address who has a lawful right to be on a particular piece of property. Section 2, which defines the elements of the offence, refers to a “person who is not acting under a right or authority conferred by law.” Only persons on real property without lawful right can be trespassers.

[67] The determination of whether a person is on premises “under a right or authority conferred by law” is not made pursuant to the Act. That determination must be made by reference to the applicable law in the particular circumstances of each case, be it statute or common law. Sections 2 and 9 of the Act, in pith and substance, define who is a trespasser and what course of action an occupier of premises has to deal with a trespasser. Any impact on Indians or lands reserved for Indians is incidental only.

Davidson v. Toronto Blue Jays Baseball Ltd., 1998 CanLII 14938 (ON SC)

[1] WILSON J.:—The jury has answered questions and rendered a verdict in this matter in favour of the plaintiff, Michael Davidson. Based upon the answers to the questions asked, counsel concede that there were no reasonable and probable grounds for the plaintiff’s arrest, which was made pursuant to the Trespass to Property Act, R.S.O. 1990, c. T.21 (the “Act”). This case raises a novel issue and a more fundamental question, however. Do the arrest provisions of the Act apply in the context of ticket holders with a licence to attend the premises? As this question has not been considered before, counsel asked me to provide reasons to clarify this question. In light of the jury’s answers to the questions asked, however, these comments are obiter.

[2] The plaintiff was arrested by three off-duty Metropolitan Toronto police officers while attending a Blue Jays game at the SkyDome on April 28, 1995. At the time of the arrest the plaintiff was told that he was arrested pursuant to the Act. The plaintiff alleges that the arrest was unlawful, and that the Blue Jays and the Metropolitan Toronto Police Board and the three named police officers involved (the Police) are liable for general, special, aggravated and punitive damages.

[13] The decision of Hurst v. Picture Theatres Ltd., [1915] 1 K.B. 1 (C.A.), confirms that the purchaser of a ticket for a seat at the theatre has the right to remain and attend the entire performance. The licence granted by the ticket includes a contract not to arbitrarily revoke the licence during a performance. The right to remain is subject to the implied contractual condition that the patron behaves properly, and complies with the rules of management. It appears clear that a ticket holder for a performance is “acting under a right or authority conferred by law”, and therefore prima facie the trespass provisions of the Act do not apply.

[18] Prior to this incident there is no allegation that the plaintiff was misbehaving or not in compliance with the rules of management. He was simply enjoying the ball game with his friend. It is clear that the plaintiff was vocal and rude when he was requested to accompany the Blue Jays personnel and the police to discuss this incident. The plaintiff refused to leave his seat. The issue is who was responsible for escalating the situation—the plaintiff or the Blue Jays’ personnel. I concur with the findings of the jury that it was unfortunate that the Blue Jays personnel escalated the situation to the point of unnecessary conflict culminating in the plaintiff’s arrest.

[19] I conclude after review of the terms of the ticket, and the relevant case law that the defendants are not entitled to revoke at will the licence granted to the plaintiff, and to treat the plaintiff as a trespasser after he refused to voluntarily leave the SkyDome.

[26] The defendants argue that the licence was not valid until shown. A contractual licence, by definition, is a licence supported by consideration. See Halsbury’s Laws of England, 4th ed., vol. 9 (London: Butterworths, 1974) at 365, citing Hurst, supra. It is clear that the defendants’ argument must fail. The licence conferred by the ticket was created upon payment for the ticket, once consideration was given. If the management chooses not to check tickets, as in this case, the licence still exists. It is usual for management to check tickets to protect their enterprise. Inspecting the ticket is not, however, a condition precedent to the creation of the licence, revocable or otherwise.

[37] In what circumstances can a ticket holder be arrested and removed from the premises? I emphasize that although the management cannot rely upon the provisions of the Act to arrest and evict ticket holders, the police and the Blue Jays security personnel are not without remedies. The reasons in this case in no way diminish the police powers to arrest in accordance with law, when the facts and circumstances support the arrest.

[38] If the police believe on reasonable and probable grounds after appropriate investigation that a ticket holder has committed, or is about to commit an indictable offence, then the police can rely upon the powers to arrest stipulated in the Criminal Code, R.S.C. 1985, c. C-46 (see s. 495(1)(a) and R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241). The scope of the appropriate investigation is factually dependent upon the urgency of the situation. The police may also arrest if they encounter a ticket holder actually committing any offence, whether it be an indictable or summary offence (see s. 495(1)(b) and R. v. Biron (1975), 1975 CanLII 13 (SCC), 23 C.C.C. (2d) 513, 59 D.L.R. (3d) 409 (S.C.C.)).

[39] The Act does not apply in the context of ticket holders. Any arrest pursuant to the Act is therefore unlawful. The ticket is a personal revocable licence, and provides the holder a right or authority conferred by law to be present in the premises of the SkyDome. The licence may be revoked by management in accordance with the terms and conditions stipulated on the reverse side of each ticket. If the holder is in breach of any municipal, provincial or federal by-law or regulation he or she may be removed without compensation. In accordance with the common law, the ticket holder has a licence for value that is an enforceable right to attend the event in question until its conclusion, provided the ticket holder behaves properly and complies with the rules of management.

In case of unlawful arrest

9a. Regardless of your answers to the questions above, assuming Michael Davidson was unlawfully arrested, confined and assaulted, at what amount do you assess Michael Davidson’s damages?

a) General Damages

$ 35,000.00

b) Special Damages

$ 54.00

c) Aggravated Damages

$ 50,000.00

d) Punitive Damages

$ 125,000.00

9b. If you award damages under c) or d), please provide particulars of the conduct leading to the damages.

Regina v. Doucette, 1960 CanLII 138 (ON CA)

It should be made clear at the outset that the recaption or resumption of possession of goods by the act of the owner through an agent or bailiff acting under his written authority, is not a lawful execution of any process against lands or goods, or is not the making of a lawful distress or seizure within the meaning of s.110 (c) of the Cr. Code which is directed against resistance to or wilful obstruction of any person engaged in the performance of such acts. This is placed beyond question by the decision of the Court of Appeal in R. v. Shand (1904), 1904 CanLII 109 (ON CA), 7 O.L.R. 190.

The limitations upon the right of an owner to repossess his goods without process of law are stated clearly and succinctly in 3 Blackstone, Commentaries, pp.3-4, from which I quote

Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, ... in which case the owner of the goods ... may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace. The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; ... if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favors and will justify his proceeding. But as the public peace is a superior consideration to any one man's private property; and as, if individuals were once allowed to use provate force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society.

This passage in Blackstone was commented upon and applied by Parke, B., in Patrick v. Colerick (1838), 3 M. & W. 483. See also Davis v. Whitridge, (1847), 2 Strob. 232.

It is very clear that whatever rights the vendor or his assignee or their authorized agent might have had under the terms of the conditional sales contract (the purchase money being in arrear and unpaid) to enter upon Chappell's premises to resume possession of the goods in question, it would be illegal for them to take such possession by force. Traders Bk. v. Browne Mfg. (1889), 18 O.R. 430, cited by counsel for the respondents is authority for this proposition. In Re Nu-Way Meat Market (1940), 22 C.B.R. 46, it was held that the liquidator might claim possession of a truck sold to a debtor under suspensive conditions of property, where the vendor had taken possession of it by force and deceit since the winding up, and had neglected to furnish the liquidator with the detailed account of what was still owned by the debtor; whatever the terms of the deed, no one had the right to take the law into one's own hands.

[...]

There must be reasonable limits imposed upon the right of self-help assumed and asserted by private individuals in order to preserve peace and tranquillity and to avoid the evil consequences which are bound to flow from insistence upon a right to use private force. Under s. 39 of the Cr. Code, the peaceable possessor of movable property under a claim of right is protected from criminal responsibility (although not from civil responsibility) for resisting its taking even by the person legally entitled.

Stewart v. Toronto (Police Services Board), 2020 ONCA 255 (CanLII)

[3] This appeal raises the issue of whether the police, acting as agents of the City of Toronto (the “City”) under the Trespass to Property Act, R.S.O. 1990, c. T.21 (the “TPA”), had the power to require persons trying to enter a public park to join a protest to submit to a search of their bags and backpacks as a condition of entry into the park, Allan Gardens, which was serving as an assembly point for protestors before they departed on a march along Toronto’s public streets.

[8] For the reasons set out below, I would allow Mr. Stewart’s appeal. I conclude that in these circumstances the police did not have the power, as agents of the City for purposes of administering the TPA, to require Mr. Stewart to submit to a bag search as a condition of entering Allan Gardens to join the protest. I would award Mr. Stewart damages in the amount of $500 pursuant to s. 24(1) of the Charter.

[77] First, while the common law entitles the Crown to withdraw permission from an invitee to be present on its property, the exercise of that power is “subject always to the Charter”: Commonwealth, at p. 245.

[78] Second, in Langenfeld this court held that the common law powers of an occupier, at least as they apply in the context of an occupier performing the duties imposed by s. 3(1) of the OLA, are the antithesis of an arbitrary power and are sufficiently precise to be a limit “prescribed by law” for purposes of Charter s. 1. The powers must be exercised reasonably, having regard to the specific circumstances, and any measures taken must be motivated by legitimate concerns about the safety of persons on the property: Langenfeld, at para. 66.

R. v. Nadon, 2017 ONCJ 581 (CanLII)

[22] The phrase "engaged in the execution of his duty" requires that a police officer be lawfully performing some particular duty. An officer will be engaged in the lawful execution of his duty if: (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law; and (b) provided such conduct, albeit within the general scope of such a duty, does not involve an unjustifiable use of powers associated with the duty (R. v. Dedman 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at paragraph 66). The courts have recognized that the police have a duty at common law and at statute to preserve the peace (R. v. Stenning 1970 CanLII 12 (SCC), [1970] S.C.R. 631; Police Services Act, R.S.O. 1990, c. P. 15, s. 42(1)(a)).

[25] In R. v. Barrow [2011] O.J. No. 2067 (O.C.J.), police were called to a women’s shelter to remove an unwanted party, Ms. Barrow. Although the officer had the authority to arrest Ms. Barrow under the Trespass to Property Act, the court found as fact that the officer’s intention in putting her hands on Ms. Barrow was not to arrest her but merely to forcibly remove her from the property. This act was not justified under any statute or common law and as such the officer was not in the lawful execution of her duty at the time of the incident and Ms. Barrow was not found guilty of the offence of assaulting a peace officer.

[26] In the case before me, the police were asked to attend the residence to assist ambulance personnel who had received a 911 call but, due to the perceived chaotic nature of the scene, requested police service. Public policy clearly requires that the police be given the authority to investigate 911 calls, but whether they may enter a dwelling house in the course of such an investigation depends on the circumstances of each case (see R. v. Godoy 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311).