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May 14, 2024

Check out Sport Law’s latest blog from Will Russell: Trespass and Restricting Access to Facilities and Events

by Sport Law
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Sport organizations have an obligation to control their environments, including practices, competitions, and events. This can mean limiting or denying access to specific individuals because of disciplinary
sanctions, inappropriate conduct, as well as concerns for the safety of participants.

This blog discusses certain aspects of the Trespass Acts to help clarify how sport organizations can legally exercise their rights to control access to their activities and events.

Communicating the Restrictions

As an initial step when looking to limit access to your activities, it is important to clearly communicate with the individuals who are subject to the restrictions. This includes setting out when and where they are unable to attend. Notifying individuals of the restrictions –and clearly recording how you notified them – is critical, especially if you must take further steps to enforce the restrictions.

You may also have to notify your members, clubs, or facilities. There can be complications with this notice, especially if the restrictions arise out of a disciplinary process where confidentiality obligations may limit your ability to communicate certain elements of the restrictions.

Understand your Authority

Once you have communicated a restriction, you will need to enforce these restrictions. Failing to respect restrictions can result in additional consequences for trespassing.

When considering a trespass issue, it is important to know and understand your rights to control your facilities and access to your programming.

To authorize a restriction on access, you must ‘own’ a space (i.e. field or ice rink), typically through a permit or rental or lease agreement. Your rights to control access to a facility may change depending on the facility. If your event or practice is a municipal facility with a common space or a public viewing area, you may not have the authority to restrict who is in the stands. This can include rinks, pools, or even fields
with adjoining playgrounds or parks.

You should review and understand your property/facilities lease agreement or applicable facility policies. These documents set out when your organization can access the facility, and any conditions around your use of the facility.

Provincial Trespass Legislation

In extreme cases, you may need to move to restrict an individual’s access under the respective statutory authority. Most provinces have legislation addressing access to property and description of trespass, and the right that an owner or occupier has to enforce a trespass notice.

Generally, this legislation defines a ‘trespasser’ as someone who enters premises that are enclosed land, without the express consent of the occupier or authorized person. A list of the applicable provincial legislation is set out below.

This definition has been expanded by some jurisdictions. For instance, the British Columbia Trespass Act stipulates that someone commits an offense of trespass if they do not leave the premises or continue on the premises after being given direction to leave. Similar wording is outlined in the Ontario Trespass to Property Act, with the addition of ‘does not leave immediately’.

Beyond defining trespassing, the legislation does give you certain rights as the property owner or occupier.

A notice of trespass must be given in writing or verbally. Some acts specifically indicate that this notice must be provided by the owner or any authorized person of the owner. An authorized person is one
that is given authority to exercise or perform a duty as the occupier of the land. The type of facility you are using and who owns the building or facility may affect your ability to issue a trespass notice.

If an individual does not respect the restrictions imposed or the trespass notice – for instance, by continuing to attend practices or remaining at the facility premises – you have rights under
the legislation including the right to arrest without a warrant due to trespass.

In Alberta, Manitoba, Ontario, New Brunswick, and Newfoundland and Labrador, if you are an owner, authorized person, or peace officer, you may arrest the trespasser. The remaining provinces of British
Columbia, Saskatchewan, Nova Scotia, and Prince Edward Island, only allow for arrest without warrant to be conducted by a peace officer.

To be clear, while arrest without a warrant may be authorized in some jurisdictions, it remains an extreme solution which should only be used in the rarest of circumstances. In cases of trespassing,the default action should be to contact the local authorities to minimize harm to all involved and avoid escalating potentially tense situations.

Lessons from Case Law

Courts across the country have considered the trespass issue on different occasions, clarifying that the force used by an owner or authorized person during an arrest for trespass must be reasonable given
the circumstances and there must be justification for the arrest.

The Ontario Court of Appeal has provided guidance when evaluating whether an arrest was justified, including:

  • Has the individual previously received a trespass notice?
  • Were they acting in a disruptive manner at the time of the arrest?
  • Were the identities of the people known?
  • Was the arrest necessary?
  • Is the power being exercised within the public interest and in line with the applicable legislation?
  • Was the conduct at issue affecting the public perception of the industry or organization? [1]

Control Over Sport Venues

Organizations also have the right to exclude an individual from a facility even when a person has a membership or license within the organization. This is permissible, if in doing so, the organization
follows their obligation to act in the public interest, while balancing this interest with private property rights. [2]

Courts held that when deciding whether to interfere with access rights, an organization must consider the conduct at issue, and whether that conduct can affect the public perception of the industry or organization. [3]

This means that if a member has engaged in misconduct and has had a history of poor conduct that could adversely affect the image of the organization to the public, this behaviour will be a significant factor in determining whether excluding them is permitted.

Advice for Sport Organizations

Restricting access to your activities or events is a challenging situation. When the need to restrict access to sanctioned activities does arise, knowing what type of information you can publicize, and then ensuring that you have clear communication with the individual involved as well as your community, is critical. We recommend setting out attendance privileges in your registration documents and applicable policies so that your community has been informed.

Knowing your rights under your facility agreements as well as applicable provincial legislation will ensure that you can take effective steps to protect your participants that align with your legal authority. In many municipalities, the local police department will have a form that you can fill out to provide to the person to whom you wish to provide a trespass notice.

If your organization is faced with a scenario where you must restrict access by an individual, please contact Will Russell (wrussell@sportlaw.ca) Donny Jackson (djackson@sportlaw.ca) or Michelle
Kropp (mkropp@sportlaw.ca) for assistance. We are here to help.

Sport Law would like to acknowledge the contribution Ben Granic made to the writing of this blog.

Chart

[1] Tucker v. Cadillac Fairview Corporation Ltd
[2] Ontario Harness Horse Assn. v. Ontario (Racing Commission)
[3] Schickedanz v. Ontario Racing Commission

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