3) Remedies

A range of remedies are available to the possessor of land. An action for damages may be brought, but if the intrusion is trivial and causes no substantial damage to the land or loss of privacy, damages are likely to be nominal. [Note 114: Nominal damages are a small sum of money awarded to indicate that the rights of the plaintiff have been infringed. They can be awarded only in torts that are actionable without proof of damage, and they are most commonly used where trespass to land is used to settle boundary disputes.] Where actual loss has been caused, damages are not restricted to the reasonably foreseeable consequences of the loss. The defendant is probably liable for all the direct consequences of the trespass. In Turner v. Thorne, [Note 115: [1960] O.W.N. 20 (H.C.).] for example, the defendant was liable for the personal injuries of the plaintiff who fell over boxes that had been mistakenly delivered and left in his garage. Flagrant acts of trespass in knowing disregard of the possessor's rights may warrant an award of punitive damages.

A plaintiff may seek injunctive relief from both continual acts of trespass and continuous acts of trespass, such as leaving chattels on the land of the plaintiff or building premises or other structures that intrude over the boundary line. An injunction is an equitable remedy that is granted at the discretion of the court. The court may order a prohibitory injunction dictating that the defendant cease continual acts of trespass or a mandatory injunction to take positive steps to terminate a continuous trespass, such as requiring the dismantling and removal of a building intruding across a boundary line. An injunction will not normally be issued if damages would be an adequate remedy or where it would create a substantial hardship to the defendant. Injunctive relief may also be available in exceptional circumstances for threatened acts of trespass.

These judicial remedies may not, however, be suitable where there are temporary and minor acts of trespass which demand a prompt and inexpensive response. In these circumstances, the possessor may resort to either a self-help remedy or a prosecution under Petty Trespasses legislation. The self-help remedy is the privilege to use reasonable force to remove a trespasser if she does not leave the premises after the landholder has asked her to. The Petty Trespasses Acts, which are found in most provinces, make trespass to land an offence punishable by a small fine. [Note 116: See, for example, Manitoba The Petty Trespasses Act, R.S.M. 1987, c. P50.] This provides for a more timely and effective punishment and deterrence of trespassers. Some Acts also allow a small award of damages to be made upon conviction under the Act. [Note 117: See, for example, Ontario Trespass to Property Act, R.S.O. 1990, c. T.21, s. 12.]

4) Trespass to Land and Shopping Malls

There has been some debate over whether or not the traditional rules of trespass to land should be applied to modern shopping malls. Shopping malls are privately owned and the owner normally remains in possession of all areas, both inside and outside the mall, which are not leased to retailers and service providers. In order to facilitate business, the owner extends an unrestricted invitation or licence to the public to enter the mall. This broad invitation to the public does not make the mall public property but it does attach to the mall some of the characteristics of public property and it distinguishes the premises from the private nature of a personal residence or business office. The public character of a mall does, for example, preclude the owner from excluding or removing a member of the public in contravention of human rights legislation. This quasi-public character of the land use does not, however, prevent the owner from removing a person from the premises for any other reasons. Trespass to land does not require the landholder to have a good reason or indeed any reason to exclude a person from his property.

This rule was challenged in the case of Harrison v. Carswell. [Note 118: (1975), [1976] 2 S.C.R. 200 [Harrison].] Mrs. Carswell was an employee of a tenant in a suburban shopping mall. The employees of the tenant, a food retailer, were on strike and Carswell participated in a peaceful informational picket line on the sidewalk outside her employer's premises. She was approached by the owner of the shopping mall and informed that picketing was not permitted anywhere in the mall and she was invited to move to a distant public sidewalk beyond the boundaries of the complex. When she refused and continued picketing, she was charged and convicted under the Manitoba Petty Trespasses Act. [Note 119: Above note 116.] A majority of the Supreme Court upheld the conviction and confirmed the right of a private property owner to control his property and to exclude any person from it. The majority view does have the merit of certainty and predictability. Nevertheless, Laskin C.J.C. wrote a strong dissenting judgment. He chided the majority for failing to modify ancient principles to accommodate modern land use and balance the competing interests of the mall owner and members of the public. In his view, the modern shopping mall was so far removed from the paradigm of private property that some restriction on the owner's power of exclusion was appropriate. He was of the opinion that a member of the public could be excluded only for legitimate reasons such as disorderly conduct, illegitimate activities, or other activities that interfered with the effective, profitable, and peaceable operation of the mall. There was, in his opinion, no right to exclude a peaceful and lawful picketer from the property. The mall owner's right to exclude persons was, in his view, coextensive with his ability to provide a good reason for doing so.

The majority decision in Harrison prompted the Manitoba legislature to make a limited union-friendly amendment to The Petty Trespasses Act to permit informational picketing at shopping malls. It creates a privilege to distribute true statements, outdoors, on private property to which the public is normally given access. The general principle, however, remains in effect and has been used, for example, to exclude a successful gambler from a horse-racing track. [Note 120: Russo v. Ontario Jockey Club (1987), 62 O.R. (2d) 731 (H.C.J.)]

Harrison was, of course, decided before the Canadian Charter of Rights and Freedoms [Note 121: Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. This citation is not given in further references to the Charter.] was passed. The Charter does not apply directly to private disputes but the Supreme Court has spoken of the importance of developing the common law in a way that is consistent with, and reflective of, the freedoms and values embodied in the Charter. [Note 122: For a further discussion of the Charter and tort law, see chapter 8.] It is intriguing to speculate on how recognition in the Charter of the freedoms of expression, peaceful assembly, and association might have affected the judgment of the majority in Harrison. The judgment of Laskin C.J.C. is more protective of those interests. The current situation is further complicated in respect of prosecutions under Petty Trespasses Acts because legislation is directly subject to Charter scrutiny. It seems unlikely, therefore, that the last word has been spoken on this issue. As Laskin C.J.C. observed, shopping malls are taking on the character of the public markets [Note 123: Harrison, above note 118 at 210.] and main streets of a former era. They are not just commercial locations. They are locations for public intercourse in all of its various aspects, and the ancient principles that currently control access to them are likely to be challenged again.