License to Occupy (TPA)

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.

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. 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.