When someone in Canada purchases a property, it typically becomes theirs to do with what they wish, within the bounds of the law. This includes deciding what use to make of the property, what kind of structures to build upon it, and who is entitled to access the property. For example, many purchasers of residential property erect fences around the perimeters of their properties to dissuade non-residents from gaining access to the property.
There are some circumstances in which one party allows another to access their property for certain purposes, such as allowing a neighbour whose property is inaccessible by any other means to utilize a driveway on your property to access their own property. Such an allowance is called an easement, entitling a party to access another’s property under the terms of an agreement.
However, when no preexisting arrangement has been made, and a person has not received permission to access the property of another, then such intrusion upon the property of another is known as trespass. In this blog, we explore the concept of trespass by a commercial telecommunications company that erects power lines that often stretch across properties owned by parties other than the telecommunications company.
Plaintiffs Purchase Property Subject to an Expired Right of Way
The case of 1071583 BC Ltd. v TM Mobile Inc. involved a complaint of trespass in which the plaintiff, the owner of the land in question, asserted that the defendant telecommunications company trespassed on its property in that power lines owned by the defendant stretched across the plaintiff’s property to reach the defendant’s cell towers, located outside of the plaintiff’s property.
When the plaintiff purchased the property in question in Kaleden, BC, in 2016, the power lines and poles were already in place under an expired statutory right of way (the right of way had expired in July 2015 due to an administrative oversight by the defendant).
Under applicable British Columbia legislation, the defendant telecommunications company can construct power lines for its own use. Still, providing electricity directly to consumers is not allowed, as that responsibility is attributable to Fortis BC, the designated electricity provider in that part of BC. As such, the electricity that ran through the defendant’s line on the plaintiff’s property to its cell tower came from a Fortis electricity line that ran adjacent to the property along the highway.
The Plaintiffs Seek Rent for Power Lines or Removal of Same
Shortly after purchasing the property, the plaintiffs contacted the telecommunications company to discuss the expired right of way. The plaintiffs sought to begin developing their property and wished to resolve matters regarding the power lines before they began excavation. The parties entered into substantive negotiation concerning whether the defendant would pay rent to maintain their power lines and pole on the plaintiff’s property or would remove their materials from the plaintiff’s property altogether. After years and years of negotiation, during which the defendants paid the plaintiff interim rent for the imposition of their materials on the plaintiff’s property, the parties were unable to come to a resolution regarding the power lines and pole, and the plaintiff’s request that the defendant remove same from their property entirely. The defendants complied with that request in 2019.
Furthermore, as part of their property development, the plaintiffs sought to obtain electricity for the entirety of their property. As such, they engaged in extensive discussions with both Fortis and the defendant, respecting the costs associated with connecting the property to electricity, which, unfortunately, was to no avail, as the parties could not reach a consensus. In October 2019, a neighbour of the plaintiffs received government approval to bring electricity onto their property, which enabled Fortis to finally connect the plaintiff’s property to electricity in March 2020.
The Plaintiffs Sue the Telecommunications Company for Trespass
Once electricity had finally been connected to the plaintiff’s property and the defendant had removed its power lines and pole, the plaintiffs commenced a lawsuit in which they sought damages from the defendant for trespass on their property. In particular, the plaintiff sought to recover money it had expended on generators, fuel for generators and equipment related to the installation of a solar power system, which amounted to more than $80,000, as these expenditures had been necessitated by the defendant’s refusal to either connect the plaintiff to power or otherwise resolve the issue related to the power lines and poles on the plaintiff’s property.
Defining the Tort of Trespass
Trespass is a tort that may be proven if a plaintiff can demonstrate, on the balance of probabilities (i.e., to a certainty of 51 per cent), two elements: that property owned by the plaintiff was subject to a direct and physical intrusion and that such intrusion was either intentional or voluntary.
However, circumstances may arise in which a person consents to the trespass, in which case the interloping party cannot later be held legally liable for damages arising from a legal agreement to allow the trespass. Consent to trespass effectively operates as a complete defence to a trespass claim. However, unlike proving the existence of trespass, the defendant must prove the existence of consent to the civil standard (i.e., the balance of probabilities).
In terms of proving consent, it is noteworthy that consent may take many forms, including an express agreement, implied conduct of the parties, a plaintiff’s acquiescence once an intrusion upon their land has occurred, or any combination thereof. Consent may also be found where the defendant can demonstrate that the parties anticipated entering into a consensual agreement. Importantly, silence on behalf of the plaintiff will not be construed as consent, and any consent that does exist is subject to limitation in scope of applicability and revocation. Any plaintiff who consents to trespass must also be proven to have had full knowledge of their legal rights.
Did the Telecommunications Company Trespass on the Plaintiff’s Land?
In this case, given that the power line was present on the plaintiff’s property from the date the plaintiff took possession to the date the defendant removed the line, the fact that a trespass had occurred was indisputable. However, it remained to be determined whether the plaintiff had consented to the trespass, as alleged by the telecommunication company.
To that point, the court reviewed the circumstances of the years-long negotiations between the parties. It was noted that while the parties negotiated to bring electricity to their property and the rental price of having the defendant’s equipment on their property, they were doing so in good faith. In other words, the plaintiff had clearly articulated that it was acceptable for the defendant’s equipment to remain on their premises during the renegotiation process. Moreover, the legal counsel represented the plaintiff throughout the negotiations, which meant they were aware of and asserting and protecting their legal rights. The court also noted that the plaintiff had accepted a cheque from the defendant in August 2017 intended to cover rent for the power line from July 2015 (a year before the plaintiff took possession of the property) until July 2017. Since the plaintiff had cashed the cheque, the court accepted that this signified their acceptance of that amount as rent for the period it purportedly covered. The court was satisfied that the plaintiff granted consent to the defendant to trespass on their property with the presence of power lines until June of 2018 when the plaintiffs first requested that the defendant remove their equipment from the plaintiff’s property.
As to the period during which the defendant’s equipment remained on the plaintiff’s property even after having been requested to remove it, the court was satisfied that the parties continued to engage in good faith negotiations during this period to work toward a solution for bringing electricity to the plaintiff’s property. Given that the plaintiff had actively engaged in such discussions, it could not be said that they suffered damages due to the defendant’s actions. That said, the plaintiff was entitled to receive reasonable rent when the defendant’s equipment remained on the plaintiff’s property. The court ordered that $2500 was appropriate as rent for one year, given that was the amount the plaintiff had previously accepted from the defendant as rent for the placement of its lines on the plaintiff’s property. This amounted to $208.33 per month. As such, the court ordered payment of damages of $208.33 per month for a period of 20 months, from July 2017 until the lines were removed in March 2019, which amounted to $4166.60.
Contact Meridian Law Group Today to Discuss Your Real Estate Dispute
If you are dealing with a trespass issue concerning your property, you need legal assistance to ensure your rights are asserted and protected throughout any related legal proceeding. Fortunately, the Meridian Law Group is here to help. Meridian Law Group is proud to provide astute, discerning legal advice and representation to British Columbians from all over the province from our downtown Vancouver, BC offices.
Contact us online or by telephone at (604) 687-2277 to schedule a confidential consultation. We can help you resolve your legal matter confidently.
