Risk Management

Risk Management Advisories

TRESPASSING

This advisory deals with some of the many questions we receive about trespassers. The following is an article written by Roger J. Horst of the law firm Blaney, McMurty, Stapells.

Pitfalls to proper signing under the trespass to property act

Under the law the occupier of property has the exclusive right to decide who is allowed to remain on his property and may exclude persons without cause or reason. For example, the courts have held that the Ontario Jockey Club may exclude by notice any individual from its racetracks in Ontario without reason. In that case, the real reason was that this individual was an excessively skilled and successful bettor.

As property managers well know, the occupier of property also has a duty to take reasonable steps to ensure that persons entering the premises are reasonably safe while on the premises.

One reasonable step is to employ the notice provisions under the Trespass to Property Act. Notice may be given orally, in writing, or by sign. The signing provisions under that Act contain a peculiar pitfall for the unwary. Where notice is given that a particular activity is prohibited, that activity and entry for that activity are prohibited, but all other activities and entry for the purpose of those other activities are not prohibited. In short, if the sign says “No Bicycles Allowed”, motorcycles are.

Conversely, where notice is given that one or more activities are permitted, all other activities and entry for the purpose of those activities are prohibited. The act goes on to indicate that in such circumstances any additional notice that entry is prohibited or a particular activity is prohibited is to be construed for greater certainty only. In short if the sign says “Bicycles Allowed”, then motorcycles are not. For notice by sign to be effective, the sign must be clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises. It should be assumed that ordinary point of access means at every point at which persons ordinarily access the premises and not simply marked entrances to the premises. For example, if persons ordinarily enter the premises through a break in the fence to take a shortcut across the property, notice should be given at that point, or the fence repaired.

It is not necessarily that notice be given in words. In fact a graphic representation is just as effective notice, and more likely to be understood by all observers.

As noted above, notice may also be given orally, or in writing. In some circumstances, an occupier of premises may want to use this method to give notice to the surrounding community. For example, an occupier of premises with a creek running through it which is subject to flooding in the spring might wish to give notice to schools in the area.

In summary, a number of simple steps can be taken to ensure proper employment of the notice provisions under the Act:

  • Keep signs simple and employ graphics where possible;
  • Consider whether the sign should be in the negative or the positive;
  • Ensure that ordinary points of access are signed;
  • Keep signs in good repair and ensure that they are noticeable;
  • Consider notice in writing to the surrounding community.

Properly employing the notice provisions under the Trespass to Property Act is no guarantee that an occupier of premises can avoid liability under Occupier’s Liability Act, but in any action it will be effective evidence of the reasonable steps being taken to ensure the safety of persons on the premises.

Taken from an article written by:

Roger J. Horst
Blaney, McMurty, Stapells

(REVISED 2015) E&OE
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