Trespass to Property: The Wrongful Interference with Land Including Things Affixed Thereto | Denali Paralegal


Last Updated: August 23 2026

Question: Can a neighbour sue in Ontario for trespass to land even if no damage happened?

Answer: Yes, in Ontario trespass to land can be a civil tort (and in some situations a prosecutable offence) even where there is no measurable damage, because the claim generally turns on a direct and physical, voluntary intrusion onto the plaintiff’s land without permission or beyond the permission given, and damages may be nominal where harm is hard to prove.   If you are dealing with repeated property interference, boundary issues, or unauthorized entry, Denali Paralegal helps with clear next steps and document-ready guidance through a Paralegal-led, limited scope approach across Ontario, call (877) 414-4377 to discuss your situation.

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Protections Against Property Interference

Trespassing upon property is commonly understood as a unlawful act in respect of the criminal law, such as in the context of a break & enter; however, trespass to property is a civil law tort in addition to a prosecutable offence.  As a prosecutable offence, trespass to property is addressed by the Trespass to Property ActR.S.O. 1990, c. T.21 and the cases arising therefrom and perhaps the Criminal Code of Canada, R.S.C. 1985, c. C-46 depending on the relevant nature of the trespass.  As a tort, trespass to property is very broad and involves presence upon and interference with the land of another as well, technically, could arise at any time an uninvited person enters upon the lands of another, or when invited, oversteps or uses the lands of another in an unauthorized way.

Note: Please contact Denali Paralegal by phone at: (877) 414-4377 to discuss any specific questions that you may have.

The Law

In Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, the Court explained the meaning of tortious trespass, stating:


[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

Calculating trespass damages is often complex. In cases of technical trespass with no resulting injury, compensation is usually limited to a token amount. The Court of Appeal discussed this difficulty at length in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, emphasizing that proving damages with accuracy is challenging and stating:


[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.

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