Real Estate

I can be named in a lawsuit if someone gets hurt on my property. Could I counter-sue for trespassing?

If someone trespasses and gets hurt on my property, I gather I could be named in a lawsuit. Could I counter-sue for trespassing, because the other person was not invited onto my property?

—Frank Lowe, via e-mail

It’s true that “anybody, at any time, can sue,” says Rusty Russell, of Russell Christie LLP in Orillia. But before you start imagining the headlines (“Burglar sues cottage owner after stubbing toe on liquor cabinet”), reality check: If the person had no right to be on your property—and if there was no negligence on your part—it’s highly unlikely you’d ever be found responsible for his or her injuries. “The law would be a fool to allow that,” says Russell. “The law makes common sense.” Of course, if you created a hazard on your property—for example, if you dug a trench through an area where you knew trespassing snowmobilers would be riding—and someone were hurt, you could be considered responsible. Not to mention kind of a jerk.

Now, back to your question. If trespassers come on your property and break something, you can sue them for damages, says Peterborough lawyer Peter Lillico. As well, even if they don’t cause any damage, you can have them charged for trespassing under the Trespass to Property Act. However, “that’s like giving them a traffic ticket,” says Lillico. “It’s not a defence against a lawsuit.”