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Santa Claus and the Law of Trespass

Continuing with our series of Christmas articles, what is the civil law with respect to entering into someone's home in the dead of night to drop off presents? From a civil perspective Santa's action constitute trespass.

G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Carswell, 2010) at defines trepass at 29:

Trespass to land consists of entering upon the land of another without lawful justification, or placing, throwing or erecting some material object thereon without the legal right to do so...

So Santa might be in trouble (although maybe delivering toys to the children of the world constitutes a lawful justification?)

However, Santa appears to have a strong defence, the defence of consent. The BC supreme court discussed this in the case of Lahti v. Chateauvert, 2019 BCSC 1081 at paragrah 7:

There is no trespass if the plaintiff consents to the defendant entering on the plaintiff’s land. The Saskatchewan Court of Appeal provided an overview of the defence of consent in Montreal Trust Co. v. Williston Wildcatters Corp., 2004 SKCA 116 (Sask. C.A.) at paras. 23-24, which was adopted by this Court in Urbanczyk v. 1128 Enterprises Ltd., 2019 BCSC 117 at para. 74. I summarize the principles most relevant to this case as follows:

1) The defence of consent or “leave and licence” provides that no trespass will be committed if the defendant acted with the express or implied consent of the plaintiff: Montreal Trust Co. at paras. 23, 29.

2) If the defendants’ conduct goes beyond the permission given, those actions exceeding the scope of consent will not be protected by leave and licence: Montreal Trust Co. at para. 31.

3) The burden of proving leave and licence rests on the defendant: Montreal Trust Co. at para. 23.

4) Leave and licence can be proven:

1) by an express agreement that amounts to leave and licence; or, 2) it can be implied (a) through conduct; (b) through acquiescence; or, 3) a combination of all three. All relevant circumstances must [sic] examined to determine whether the conduct of the plaintiff amounts to leave and licence on the facts of the case.

[Montreal Trust Co. at para. 23]

So Santa arguably can rely on the implied leave and licence. Thankfully he is too quick to be caught, so this issue will remain academic.

If you have questions about the law of trespass, please feel free to contact us.

The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.

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