canada real-estate debt
Bob occupies Anna&#39;s parking lot. How could Anna prove it?
<p>Anna owns a parking lot. However Bob frequently uses it as his guests' parking lot for two years. The average rental rate for a parking lot is about $40 a month, totaling about $1000 for the two years period. Bob denied everything.</p>
<p>How could Anna prove this?</p>
<p>Here are the possible options:</p>
<ol>
<li>Send Bob a bill. But, without proofs, Bob could simply refuse it.</li>
<li>Spend about $1000+ dollars to install a surveillance system to record how Bob's guests parked in that lot. However, Bob could deny that the car is affiliated with his guests.</li>
<li>Take pictures or call the police. However, this can only prove that Bob used the lot on a specific date.</li>
</ol>
<p>After a lengthy research, I found that it is very very hard for Anna to recover any money for the lot-usage in the past and in the future.</p>

<p>The question of how to prove something isn't really a legal question, but there are implicit legal questions about proof here. The starting point is the assertion that &quot;Bob frequently uses it as his guests' parking lot&quot;: how do you know? For example &quot;Anna sees cars parking in unreserved slots every day, between 6:00pm and 10:pm, and the drivers are seen walking to and from Bob's apartment&quot;. Sure, Bob can deny it, but Anna got some of the license numbers and subpoenaed the owners. At least some of the owners testified that Bob told them that there was free evening parking in slots 64 and 58. Bob still denies it: the question is, is there more evidence that Anna is wrong, or right, about her claim about parking? In a civil case, you can't just say &quot;Nu-uh, I did not!&quot;, you have to present evidence to support your denial that is better than the evidence that supports the accusation.</p>
<p>It may be that Bob can defend himself simply by (correctly) denying that he is responsible. and his defense could be testimony from guests who said &quot;No, Bob never mentioned the parking lot, we just decided we could get away with it&quot;.</p>

<h1>I. What Must Anna Prove?</h1>
<h3>A. The Elements Of Trespass To Land Under Canadian Law</h3>
<p>The relevant cause of action is trespass to land. <a href="https://www.mmlc.ca/article25.htm#:%7E:text=Trespass%20requires%20some%20form%20of,substance%20onto%20the%20plaintiff%27s%20land." rel="nofollow noreferrer">Canada</a> has removed the requirement that the trespass be intentional and allows a trespass action even in the case of mere negligence:</p>
<blockquote>
<p>For success in a trespass claim, the act of trespass must be voluntary
– but it need not be intentional. Trespass may be committed either
intentionally or negligently. If a trespasser does not know that the
land he or she is on is deeded land, but with inquiry can find out,
the trespass is negligent.</p>
<p>Trespass requires some form of physical entry onto or contact with the
claimant’s (plaintiff’s) land. That entry could be the defendant going
onto the plaintiff’s land, or putting or throwing an object or a third
person onto the plaintiff’s land, or discharging some substance onto
the plaintiff’s land.</p>
<p>A trespass can also take place by failing to leave another’s property
after permission to enter has been first given, then revoked or ended;
or after the purpose for which permission to enter was given, has
ended. For example, a movie patron who stays on in the theatre after
his movie ends, is in trespass.</p>
<p>The wrongful entry or trespass may be on, under or over the
plaintiff’s land. A claim for trespass over land would be for some
sort of permanent structure affecting the plaintiff’s actual or
potential use or enjoyment of his or her land.</p>
<p>One can succeed in a trespass action without proving that any damage
occurred. . . .</p>
<p><strong>Financial Compensation (Damages)</strong></p>
<p>Where one sues for trespass without proving that damage has occurred,
only nominal compensation or damages will be awarded. This is
especially so where the trespass was technical, unintentional,
reasonably likely to be legal, or undertaken to avoid danger to
someone or something.</p>
<p>Where damage to land has occurred, the proper amount of compensation
is the amount by which the value of the land has been reduced by the
trespass. It may be equal to the cost of repair, but figuring out the
cost of repair alone is not the correct way to calculate damages for
trespass.</p>
<p>Damages may include the value of lost profits where there is a
trespass to land used in a business.</p>
<p><strong>Punitive or Exemplary Damages</strong></p>
<p>Where the defendant’s actions were fraudulent, willful or so wholly
disrespectful of the property owner’s rights as to be an affront to
the reasonable person, the court can award punitive damages. The cases
talk about “wanton and defiant conduct and insults”, “action going
beyond inadvertence, mistake, oversight, or misunderstanding”,
“arrogance and unconcern”, “acting callously”. Punitive damages can be
significant compared with the usual amount of damages available in a
case of trespass.</p>
<p>Nominal damages could be as little as one dollar. Compensatory damages
will reflect the actual loss in value of the land as proved by the
plaintiff. Punitive damages can be $1,000; $5,000 or in one case
$25,000—a figure that in the mind of the judge is a sufficient
punishment for the callousness of the trespasser.</p>
<p>Punitive or exemplary damages are often claimed and awarded in
situations where one land owner cuts down trees on the property of
another, having been warned not to do so.</p>
<p><strong>Injunctions</strong></p>
<p>A court may also grant an injunction to order the defendant to stop
trespassing, although it will no do so where the injury is small and
can be sufficiently compensated with payment of damages. An injunction
is more likely where the trespass is continuing or likely to be
repeated.</p>
<p><strong>Limitation Act (B.C.)</strong></p>
<p>In British Columbia, an action for trespass to land must be started
within two years from the date that the plaintiff can first make his
claim.</p>
</blockquote>
<p>The Canadian rule is more lenient than the majority common law rule in the United States as described in the Restatement (Second) of Torts § 158 &quot;Liability for intentional Intrusions on Land&quot; (1965) which allows liability only for intentional trespasses to land and not for negligent trespasses to land. This majority common law U.S. rule is as follows:</p>
<blockquote>
<p>One is subject to liability to another for trespass, irrespective of
whether he thereby causes harm to any legally protected interest of
the other, if he intentionally</p>
<p>(a) enters land in the possession of the other, or causes a thing or a
third person to do so, or</p>
<p>(b) remains on the land, or</p>
<p>(c) fails to remove from the land a thing which he is under a duty to
remove.</p>
</blockquote>
<p>Proof of intent is particularly easy because everyone is deemed to have constructive knowledge of all matters stated in recorded documents in public real estate records even if they don't have actual knowledge. So, the knowledge is limited to survey-type knowledge that particular land is within the deeded ownership of record and not knowledge of who owns the land. (Also, you merely need to prove that the trespasser knows that the trespasser doesn't own the land, not that the trespasser knows who owns the land.)</p>
<h3>B. Affirmative Defenses</h3>
<p><strong>1. Consent</strong></p>
<p>The primary affirmative defense to a trespass on lands case is consent. This shouldn't be an issue, however, because Bob denies that a trespass happened at all.</p>
<p><strong>2. Inapplicable Affirmative Defenses</strong></p>
<p>There are affirmative defenses for self-defense, defense of others and necessity.</p>
<p>For example, if Bob's office is burning down, he or the fire department can use Anna's parking lot without her permission. Similarly, a necessity defense might apply if Bob's office was temporary landlocked, but there is no indication here that Bob did not have access to a public road.</p>
<p><strong>3. Mitigation Of Damages Doesn't Apply And Adverse Possession Is Unlikely To Apply Here</strong></p>
<p>Anna does not have to prove that she took measures to prevent trespassing to &quot;mitigate damages&quot;.</p>
<p>Use of the parking lot by one car inherently prevents another car from parking in that particular place. The essence of trespass damages is use without permission not prevention of Anna being able to rent spots to someone else. Anna does not have to show that her lots were full and that she was prevent from getting someone else to pay for parking in that spot.</p>
<p>A single unlawful presence without consent that is intentional or negligence proves the liability case.</p>
<p>Actions she should take to prevent people from using the spot go only to intentionality or negligence on the part of the trespasser. She does not have to take any legal action prior to the two year statute of limitations.</p>
<p>The only way that &quot;sleeping on her rights&quot; can hurt Anna in this case is that if someone openly, inconsistently with her rights, uses the parking space <a href="https://legalbeagle.com/6658308-squatters-rights-canada.html" rel="nofollow noreferrer">for 15 years</a> or more (per Canadian law), she could lose her ownership rights in the parking space to the squatter by <em>adverse possession.</em></p>
<h3>C. Other Possible Claims</h3>
<p>Another answer has suggested that a claim for unjust enrichment might be available, although it is far less natural and a stretch in this case. <a href="http://www.bottomlineresearch.ca/pdf/unjustenrichment.pdf" rel="nofollow noreferrer">In Canada the elements of unjust enrichment</a> are:</p>
<blockquote>
<p>“As a general matter, the test for unjust enrichment is well
established in Canada. The cause of action has three elements: (1) an
enrichment of the defendant; (2) a corresponding deprivation of the
plaintiff; and (3) an absence of juristic reason for the enrichment
...”</p>
<p>Thus, for recovery to lie, something must have been given, whether
goods, services or money. The thing which is given must have been
received and retained by the defendant, and the retention must be
without juristic justification.</p>
</blockquote>
<p>Citing <em>Garland v. Consumers’ Gas Co.</em>, [2004] S.C.J. No. 21; 2004 SCC 25
3; QL at p. 10; <em>Peel (Regional Municipality) v. Canada</em> (1992), 98 D.L.R. (4th) 140 (S.C.C.), at p. 154.</p>
<p>It is unnatural because a trespass to land case does not involve a transfer of goods, services or money, and that thing is not &quot;retained&quot;.  Further, it might not be easy to show a deprivation in an unjust enrichment claim under Canadian law where not every spot in the parking lot was full. These definitional issues for how the elements of the claim are interpreted in an unauthorized use of a parking spot case don't come up in a trespass to land case where there are no ambiguities and lots of case law.</p>
<p>Also, a trespass to land claim arises in law and is not subject to equitable defenses, while an unjust enrichment claim does arise in equity and is subject to equitable defenses.</p>
<p>Punitive damages claims are also recoverable in a trespass to land claims but not an unjust enrichment claim which is based upon restitution rather than fault principles. Injunctive relief is also not available in a claim for unjust enrichment.</p>
<p>In short, there is nothing to be gained relative to a trespass to land claim by bringing an unconventional unjust enrichment claim, and there are reasons why it might be less desirable.</p>
<h1>II. How Does Anna Prove What She Must Prove?</h1>
<h3>A. How Hard Is It To Prove Trespass Compared To Other Claims?</h3>
<p>Generally speaking, liability for trespass is one of the easiest causes of action to prove in court because prove that a trespass on land was voluntarily and knowing or negligent is so easy. Also, proof of damages is not required to establish liability since nominal damages are available in every case.</p>
<p>In most cases there is very little room for a finder of fact's discretion about whether there was a tortious trespass to lands or not, unlike, for example, a negligent auto accident claim where the question of negligence is often a close call and affords a finder of fact a lot of discretion.</p>
<p>Proving the value of the land trespassed upon is also usually not very hard to do. The issues are usually pretty black and white. In contrast, most tort claims involve far more general standards that involve jury determinations about reasonableness that are not cut and dry.</p>
<p>As expert witnesses go, licensed real estate rental value appraisers are abundant, cheap, pretty consistent with each other, and widely viewed as highly credible by judges. You could probably get a rental value appraisal for a parking lot for under $1000, while an expert opinion on most litigated matters in court cases costs $5,000-$50,000 and requires you to find someone to testify who is difficult to locate and difficult to persuade to testify.</p>
<p>The facts that the lay witnesses would testify about (i.e. seeing X car in Y parking spot on Z date) is also uncomplicated, can be provided quickly without lengthy amounts of time on the stand, and isn't very vulnerable to questioning the perception or interpretation the witness made of what the witness saw.</p>
<h3>B. Proof Of Liability</h3>
<p><strong>1. Anna's Prima Facie Case</strong></p>
<p>First, Anna needs to prove liability.</p>
<p>To do this, a single photograph, authenticated by her to show that it was taken within two years prior to the lawsuit being filed and testimony from her that Bob did not have permission and knew that the parking lot wasn't his would suffice. To be sure, she would probably also introduce the deed to the parking lot and a survey showing that the place depicted in the photo was the place described in the deed.</p>
<p>Realistically, she could probably secure a pre-trial stipulation regarding her ownership of the parking lot, and Bob's knowledge of her ownership of the parking lot. She would still probably have to testify regarding the existence of at least one trespassing act within the last two years to corroborate a photo showing that, and to establish lack of permission (even though consent is only an affirmative defense and the burden of proving consent is on Bob).</p>
<p><strong>2. The Canadian Fee Shifting Rule</strong></p>
<p>Proving liability is important because in Canada, if Anna prevails on liability, even with only nominal damages, <a href="https://www.mcmillan.ca/Litigating-in-Canada-Five-Things-US-Lawyers-Might-Find-Surprising" rel="nofollow noreferrer">she is awarded attorneys' fees and court costs</a>.</p>
<blockquote>
<p>Unlike in the U.S., where attorneys' fees generally are not
recoverable unless specifically permitted by statute or contract, in
Canada, where the guiding principle is that &quot;costs follow the event,&quot;
attorneys' fees are awarded to the prevailing party in almost every
action. In other words, the prevailing party at trial or on appeal can
expect the opposing party to be ordered to pay anywhere from fifty to
ninety percent of the prevailing party's actual legal costs.
Attorneys' fees can also be awarded to the prevailing party on a
motion. For instance, if a defendant brings a motion for summary
judgment that is denied by the court, the defendant can be ordered to
pay the plaintiff's legal fees incurred in responding to the motion.</p>
<p>As a result, because of the significant consequences that can result
from losing at trial or even being denied relief on a motion,
litigants in Canada tend to be more cautious when filing pleadings
with the court. Moreover, because judges have broad discretion in
determining whether to award costs, some judges may be reluctant to
award attorneys' fees against a sympathetic plaintiff, even if the
plaintiff's claim lacked merit. In any event, these cost-shifting
rules have a tremendous impact on litigation strategy in Canada, both
with respect to whether suit should be filed and what claims should be
asserted, and with respect to what strategies should be employed to
bring the suit to resolution.</p>
</blockquote>
<p><strong>3. Options For Pre-Trial Proof Of Liability</strong></p>
<p>Unless Bob raises a consent defense disputing Anna's affidavit, Anna has a very good chance of prevailing on liability prior to trial with merely a photograph, an affidavit, and a deed and survey or stipulation. Bob is presumed to have knowledge of public property records and the photo itself will often show a no trespassing sign.</p>
<p>This would be huge, because it would mean that Bob would go into trial knowing that he will be paying Anna's attorney fees and costs regardless of what the actual damages that she proves will be.</p>
<p><strong>4. Defenses To Liability And A Possible Civil Conspiracy Claim</strong></p>
<p>The weakest part of the case would be that the violators might be Bob's guests rather than Bob himself or people who are agents or employees of Bob. The guests would be the true trespassers and the damages from any one of them might be nominal. In that case, Anna might need to bring a cause of action for civil conspiracy and show that Bob intentionally conspired with his guests to have them use the parking lot perhaps directing them to do so, knowing that this was trespassing. Anna might prove that by getting one or more guests of Bob (ideally several to prove a pattern) to demonstrate that Bob did make this direction, would ideally have communications with Bob showing that he knew it was illegal for his guests top use the space and that permission was denied (or proof that there was a sign to that effect), testimony from Bob admitted to doing so, or perhaps testimony from people in Bob's office that he or they on his behalf gave this direction.</p>
<h3>C. Proof of Damages</h3>
<p>Obviously, Anna would like to prove more damages than just nominal damages and attorneys' fees. She can only recover damages for the two years prior to the commencement of the lawsuit. But for that she can recover the fair market value of the parking spaces.</p>
<p><strong>1. Proving The Economic Value Of A Violation</strong></p>
<p>Usually, Anna would hire a real estate appraiser to provide an expert opinion regarding the fair market value of the parking spaces that is further supported by her own testimony regarding the amounts that she charges and collects with third-parties for using the parking lot.</p>
<p>Another way to prove damages is to put up a sign stating a fine for using the property without permission that is reasonable and clearly visible. This isn't conclusive proof (the judge could find that it is unreasonable in amount if it was, for example, $1,000,000) but particularly if corroborated by expert testimony or if it is comparable to parking ticket amounts imposed by municipal officials  would be persuasive in establishing the correct amount of damages for a violation.</p>
<p>The second part of Anna's damages case is to prove how much Bob used the parking lot.</p>
<p>A judgment for Anna by the judge can be upheld if it is supported by competent evidence in the record. To meet that standard, all that is necessary is for Anna and/or one or more other witnesses to testify under oath, subject to cross-examination at trial, based upon the personal knowledge of the witness, regarding how often Bob used the parking lot. A judge can rule in Anna's favor if the judge believes that it is more likely than not that Anna's testimony s true and that Bob's testimony, denying any use of the parking lot by his guests, is false. The photograph of a single instance of a trespass would go a long way towards undermining Bob's credibility.</p>
<p><strong>2. Proof Of The Number And Amount Of Violations</strong></p>
<p>The remainder of Anna's proof of use by Bob in Anna's damages case goes to making Anna's testimony more credible in the eyes of the judge than Bob's testimony. There are no hard and fast rules about how this is done. Some of the common methods of enhancing Anna's credibility are:</p>
<ul>
<li>Contemporaneous written logs by Anna of violations.</li>
<li>Photos by Anna (or someone else) of violations each authenticated and provided with a foundation as to when they were taken and that there was not permission.</li>
<li>Testimony from as many witnesses other than Anna as possible at trial regarding violations, ideally, from someone without a personal economic interest in the matter such as a neighbor.</li>
<li>Evidence of communications to Bob about incidents (ideally with his responses admitting the problem, but even unilateral communications are helpful to corroborate bare testimony, to defeat lack of accurate memory attacks on Anna's credibility, to show Bob's knowledge of lack of consent).</li>
<li>Complaints to police or towing requests.</li>
<li>Lists of license plate numbers and proof that those license plate numbers are connected to Bob, possibly through a public records search and then a deposition of Bob about his knowledge of the people owning cars with those license plate numbers).</li>
<li>Video surveillance. Note that this does not need to be continuous, particularly if Anna and expert testimony can establish that use of parking spaces by the month is the norm.</li>
</ul>
<p>Realistically, proof of the number of violations would hinge mostly on testimony one to three witnesses with a limited amount of photographic, video, or documentary evidence tending to corroborate the testimony without needing to corroborate the testimony with regard to each particular instance. The corroboration is not legally required at all since it goes only to the credibility of the witnesses, but if it is enough to show that Anna and any of her other witnesses are more credible than Bob and any of his witnesses, it will probably do the job.</p>
<p><strong>3. Punitive Damages</strong></p>
<p>If Bob lies in court and the judge is convinced that Bob lied and also flagrantly ignored Anna's property rights (which would require very little additional proof beyond Anna's core case of liability and economic damages), the likelihood that punitive damages would be awarded by the court is very real. This could turn $1,000 of economic damages into $3,000 or more of economic and punitive damages combined on top of several thousand dollars of attorney fees and litigation costs.</p>
<p>No separate proof of the amount of punitive damages which are set in the discretion of the judge, is required.</p>
<p><strong>4. Injunctive relief</strong></p>
<p>The judge is also likely to issue an injunction upon request without proof of damages which is the harder part of the claim, possibly even on a pre-trial motion for summary judgment, which would up the ante causing violations by Bob to be punishable by contempt of court sanctions including fines and incarceration, instead of just compensatory damages, for future violations.</p>
<h1>III. Conclusion</h1>
<p>Litigation is never a sure thing. If Bob lies under oath at trial, the judge has the right to believe Bob and disbelieve Anna's evidence finding it less credible, no matter how much Anna does to corroborate her testimony. But if she has lots of solid evidence and Bob has none, the likelihood that Anna will prevail is great.</p>
<p>And, if Anna prevails she be awarded not just economic damages but a great risk of punitive damages and injunctive relief and near certainty of a significant amount of attorneys' fees, appraisal fees, and other litigation costs is very great.</p>
<p>If Bob were my client, in the face of that kind of evidence, I would urge him to back down and settle for $1000 and to comply going forward, rather than fight the case.</p>
<p>The credible threat of fee shifting makes the case much more economic to prosecute than in the U.S. where the prevailing party would get in addition to proven damages, expert witness fees and out of pocket litigation costs, but not attorney fees.</p>
<h1>IV. Other Options</h1>
<p>Another option for Anna would be to start towing the cars of Bob's guests at their expense. A few rounds of this would likely nip future violations in the bud. This could be done without advanced permission from a court or litigation costs unless a trespasser disputed that the trespasser was trespassing. And, the evidence arising from the tow would make it very hard for the trespasser to dispute the pertinent facts.</p>
<p>In real life parking lot disputes similar to the one described in the original post, at least in the U.S., this is usually what is done. I have witnessed two such disputes between neighboring businesses in my own urban residential neighborhood in Denver, Colorado in the last few years and both have played out that way.</p>
<p>But that is partially because the American rule of attorney fees which does not allow a prevailing party in a trespass action to receive attorney fees makes it much less economic to pursue a money damages claim for trespass when the amount in controversy may be modest (such as the $1000 of underlying loss to Anna here) than it is in Canada.</p>

<blockquote>
<p>the final objective is to recover money</p>
</blockquote>
<p>The approach would be very different for the past and the future.</p>
<h1>The past</h1>
<p>To recover money for what has already happened, Anna needs to prove not only the fact of Bob unlawfully occupying the parking lot, but to <strong>quantify the actually incurred losses/damages</strong>. These would stem from her <em>inability</em> to use the lot when Bob occupied it and would not be in any way related to the amounts she paid for the rental.</p>
<p>For example, she would need to provide receipts for every occasion when she had to pay for alternative parking because Bob had occupied her lot. If instead her friends had to pay for alternative parking that would not be her damages unless it say had detrimental effect on the friendship which in turn can be somehow quantified in dollars. Difficult.</p>
<h1>The future</h1>
<p>The approach would be to compel Bob to <strong>enter a contract</strong> with Anna e.g. subletting the parking lot to him, or simply to oblige him to pay a fee every time he uses the lot.</p>
<p>To compel Bob, Anna could legally threaten Bob with these measures:</p>
<ul>
<li>Promise to serve him a trespass notice next time he or his associates are seen on the parking lot, and if they persist, actually do it and/or call the police to get him removed;</li>
<li>Obtain <a href="https://www.richmond.ca/services/ttp/parktow/pregulations.htm" rel="nofollow noreferrer">approval for towing away</a>, post the sign and engage a 3rd party contractor to tow Bob's vehicles away on call.</li>
</ul>
