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Trespass to Property:
The Wrongful Interference with Land Including Things Affixed Thereto
Last Updated: August 24 2026
Question: What counts as trespass to land in Ontario, and can I claim damages even if there’s no harm?
Answer: In Ontario, trespass to land is a civil tort that generally requires a direct and physical intrusion onto property in the plaintiff’s possession (not just indirect interference), and the defendant’s act must be voluntary even if not intentional; it can also occur accidentally, and it is actionable without proof of damage, though damages are often nominal where no harm is shown. In parallel, trespassing can also be a prosecutable provincial offence under the Trespass to Property Act, R.S.O. 1990, c. T.21 in appropriate circumstances, and there may be criminal exposure where conduct involves a break and enter to commit a crime. If you are dealing with unwanted entry, boundary issues, or interference with access, PKM Legal Services can help you assess your facts and options for a practical next step in Ontario, including evidence and what to request for redress, call (519) 410-5250.
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Protections Against Property Interference
Trespass usually brings to mind crime; think break & enter, but the law treats trespass to property as both a civil tort and a prosecutable offence. On the offence side, trespass is addressed in the Trespass to Property Act, R.S.O. 1990, c. T.21, and, where appropriate, the Criminal Code of Canada, R.S.C. 1985, c. C-46. On the civil side, trespass to property is expansive, capturing presence on and interference with the land owned or in the possession of another person without consent or, even with invitation, oversteps the permission or uses the land in an unauthorized manner.
Note: Please contact PKM Legal Services by phone at: (519) 410-5250 to discuss any specific questions that you may have.
The Law
A useful description of what legally counts as trespass in tort law can be found in Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, where the Court explained:
[52] With respect to the claim of trespass to land Lederman J. in Hudson’s Bay at para. 9 states as follows:
Clerk and Lindsell define trespass to land, at p. 837, as consisting of “any unjustified intrusion by one person upon land in the possession of another”. Halsbury’s, Vol. 45, para. 1384 states that “every unlawful entry by one person on the land in possession of another is trespassed for which an action lies…
[53] The elements for the claim of trespass to land are set out by Crane J in Grace v. Fort Erie (Town), 2003 CanLII 48456 (ON SC), [2003] O.J. No. 3475 (SCJ) at para. 86:
The elements of trespass have been described as follows:
- Any direct and physical intrusion onto land that is in the possession of the plaintiff, (indirect or consequential interference does not constitute trespass).
- The defendant’s act need not be intentional, but it must be voluntary.
- Trespass is actionable without proof of damage.
- While some form of physical entry onto or contact with the plaintiff’s land is essential to constitute a trespass, the act may involve placing or propelling an object, or discharging some substance onto the plaintiff’s land can constitute trespass.
Trespass to property, or trespass to land, covers both intentional and accidental situations. In Gross v. Wright, [1923] S.C.R. 214, the trespass was deliberate, involving an attempt to steal a neighbour’s space. On the other hand, trespass can arise innocently, such as crossing into another’s property without realizing, as demonstrated in Barnstead v. Ramsey, 1996 CanLII 1574, and Sinkewicz v. Schmidt, 1994 CanLII 5148, where the cutting of neighbour-owned trees was accidental.
Damages for Trespass
In many circumstances calculating the extent of harm caused by a trespass may be difficult. In other circumstances, involving a technical trespass without any corresponding harm, an appropriate redress for trespass is also troublesome. Generally, where trespass occurs without harm, a very nominal sum may be awarded. On the issue of trespass damages, the Court of Appeal addressed such at length within the case of TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1,wherein, among other things, the difficulty to prove damages with exactitude was mentioned and it was stated:
[61] It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence. Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases. The controlling principles were clearly expressed by Finlayson J.A. of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 112 O.A.C. 138, at para. 75, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 516:
I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.
See also Cadbury Schweppes Inc. v. FBI Foods Ltd., 1999 CanLII 705 (SCC), [1999] 1 S.C.R. 142, at para. 99; 100 Main Street East Ltd. v. W.B. Construction Ltd. (1978), 1978 CanLII 1630 (ON CA), 20 O.R. (2d) 401 (C.A.), 88 D.L.R. (3d) 1, at para. 80; Penvidic Contracting Co. v. International Nickel Co. of Canada, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267, at pp. 278-79.
Conclusion
The tort of trespass to land is expansive in its reach. It is a strict liability tort, meaning a person may be liable even for an accidental entry. Where ill will or actual damage is lacking, legal damages are likely to be very small. Even so, an unintended trespass can sometimes create significant harm.
NOTE: A large quantity of online searches featuring “lawyers near me” or “best lawyer in” usually indicates a demand for prompt and competent legal assistance rather than a precise occupational title. In Ontario, licensed paralegals are governed by the same Law Society that regulates lawyers and are permitted to represent clients in specified litigation issues. Advocacy, legal assessment, and procedural expertise form the core of that function. PKM Legal Services provides legal representation within its authorized mandate/scope, focusing on strategic positioning, evidentiary preparation, and compelling advocacy aimed at attaining swift and favourable outcomes for clients.
