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Damages - Trespass. Sheridan Retail Inc. v. Roy [trespass nominal damages]
In Sheridan Retail Inc. v. Roy (Ont CA, 2026) the Ontario Court of Appeal dismisses a plaintiff's appeal (though allowing the costs appeal), here brought against a successful defendant's CJA s.137.1(3) SLAPP dismissal motion regarding an action that was first advanced in defamation and some economic torts - but then re-focussed to center on a trespass that the defendant engaged in to gather photo evidence of their allegations.
The court considers that nominal damages arise from a trespass that causes no harm, here in this SLAPP harm-expression balancing context:[77] SRI claims that the motion judge erred in several respects in her assessment of the threshold requirement relating to its trespass claims. I will begin with its submission that the motion judge misapprehended the law of trespass by failing to recognize that a person who enters a public mall for an unauthorized purpose, such as theft, can be a trespasser: see e.g., Hudson’s Bay Co. v. White, [1997] O.J. No. 307 (Gen. Div.), at para. 9, rev’d in part on other grounds, [1998] O.J. No. 2383 (Div. Ct.). It argues by analogy that Mr. Roy’s entrance for the purpose of undertaking unauthorized investigations, as it alleges, is comparable.
[78] I take no issue with the legal proposition that SRI relies upon, ...
....
[81] I now return to SRI’s reliance on White. Even if Mr. Roy was a trespasser because he entered mall property to conduct “unauthorized investigations”, in the absence of SRI demonstrating grounds to believe it suffered the damages it pleaded, his acts of trespass would only be actionable per se. The problem that this presents is that a trespass that produces no actual harm is a mere technical case that will not have the substantial merit needed to outweigh the protected right to expression, despite entitling the claimant to nominal damages to vindicate their property rights: see e.g., Deluca v. Paul Guiho Trucking & Construction Ltd. (1984), 1984 CanLII 2188 (ON CA), 10 D.L.R. (4th) 267 (Ont. C.A.), at p. 274; Insurance Corporation of British Columbia v. Ari, 2025 BCCA 131, 8 B.C.L.R. (7th) 266, at paras. 35-39; and see Pointes, at para. 47. The motion judge was entitled to conclude in this case that the alleged trespasses claims did not have substantial merit that could outweigh the protected right to expression.
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