Amendments to the Occupier's Liability Act

By Scott Chimuk & Amal Tharani

The Trespass Statutes (Protecting Law-Abiding Property Owners) Amendment Act (“Bill 27”) reflects the current Provincial Government’s efforts to tackle rural crime in Alberta, a growing concern for Alberta’s rural population. In the past year, Alberta and Saskatchewan have both seen two high profile cases involving trespassers to rural property. These cases call attention to the need for clarity with respect to a property owners’ ability to protect and defend themselves, their property, and most importantly their families.

Bill 27 sets out a series of amendments to Provincial trespassing laws aimed at improving protections for law-abiding property owners. These amendments, which will apply retroactive to January 1, 2018, include an increase to maximum fines and penalties for trespassing. Fines are now $10,000 for a first offence, up to $25,000 for any subsequent offences and can include up to a maximum of six months of jail time. Corporations that assist trespassers can now also face fines of up to $200,000, a change which has been touted as a novel development in Canadian legislation. Further, the maximum amount a court may order for loss or damage to property has been raised significantly from $25,000 to $100,000.

Most notably, are the amendments to the legislation regarding the civil liability of property owners. Subject to willful or reckless conduct a property owner is not liable for death or injury caused to a trespasser if they have reasonable grounds to believe a trespasser is committing, or about to commit, a criminal offence. Furthermore, if a trespasser wishes to sue a property owner for injury, damage, or death they must now prove that the property owner acted willfully and grossly disproportionate and that the property owner’s actions resulted in a conviction under the Criminal Code (Canada). Of note, is that the amendments to the legislation do not change a property owner’s legal duty to trespassers who are not committing, or are about to commit, a criminal offence.

Proponents of the legislation highlight the strong deterrence factor of the amendments noting that property-owners are not being given a free-rein to injure or harm trespassers, rather trespassers will face appropriate consequences for criminal actions. Furthermore, property owners will rightfully be able to take steps to protect their homes and families from intruders in order to feel safer in communities otherwise plagued by high rates of rural crime.

As a result of this legislation law abiding citizens, such as our client Edouard Maurice, will hopefully no longer have to fear being sued by criminally convicted trespassers. It is our further hope that victims will not have to be revictimized in a civil lawsuit by convicted criminals seeking to profit by their criminal conduct and that the legislation will enable victims to have these frivolous and vexatious claims summarily dismissed.

Scott Chimuk is a partner at Burstall LLP and is head of their commercial litigation practice group. The core of Scott's practice is solving sophisticated commercial problems, and his practice also has a significant regulatory element.

Amal Tharani is an articling student at Burstall LLP. She received her Juris Doctor from the University of Calgary. During her time in law school, Amal worked with Student Legal Assistance and with Pro Bono Students Canada.