The Right to Exclude - Lecture notes 1 PDF

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The Right to Exclude Bundle of Rights •

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Rights are not absolute and can come with obligations • Examples: • License required to drive a car • Potential liability for damage to property or persons while on your property • Rights are qualified and limited • Examples • Loan from bank – security interest • Police powers to search Bundle of rights include the right to exclude - known as the core or essential right • Harrison v. Carswell [1976] 2 SCR 200 • This case highlights for there to be a proprietary interest in an ‘object’, there must be a recognized legal right to exclude. • In the Harrison v Carswell case the SCC was asked to balance the competing rights of an individual private property owner (effectively, the owner’s right to exclude) with the statutory right (a public right) of an individual to lawfully and peacefully picket during a labour dispute. • This case highlights that property cannot exist without some regulation – that in the event of a dispute a decision has to be made as to whose property rights prevail.

Difference Between Private, Public and Open Access Property •

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Private Property: • One or more persons/corporations that have rights with respect to land, valuable things or other objects • Owners determine how the property will be used and by whom, and have the right to exclude; but all rights have limits and obligations Public Property: • The state possesses the power of exclusion. • It is unlike private property in the sense that it has unique, public obligations. This is also known as “state property”. • Two obligations that are important are: • Charter of Rights and Freedoms that applies to state action, and • Good Governance. Open Access Property: • Property that is neither public nor private and persons have a right not to be excluded • There is overlap between open access property and public property (ie. parks)

Harrison v. Carswell Facts

Issue

D was an employee of Dominion, one of the stores inside Polo Park Shopping Mall (Dominion was a tenant in the mall property owned by Fairview Corporation Limited). • D was peacefully picketing on the private sidewalk in front of the shopping mall in connection to a labour dispute, after having been requested by the owner Fairview not to enter or come upon the premises. • D returned 4 times and was charged with trespass under the Manitoba Petty Trespasses Act each time she returned. • Defendant convicted and fined $10 for each of the trespassing charges. Does the owner of the plaza have possession or control of the common areas (the right to exclude)

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to invoke the remedy of trespass? The owner of a shopping plaza has the right to exclude any person from the common areas, provided they have sufficient control and possession of the common areas. - “any person who trespasses upon land, the property of another, upon through which he has been requested by the owner not to enter is guilty of an offence” - Common law will always protect public property rights unless there is an overriding statute (was before the Charter) Decision The owner does have possession and control. Therefore, D was trespassing pursuant to the Manitoba Petty Trespasses Act in force at the time. Reasoni • Individual property rights of an owner of property are always protected under Canadian law ng unless a statute provides otherwise. In this case it would be the Petty Trespass Act. • Sufficient control and possession exists because owner of the shopping center has restrictive policy that prohibits the distribution of pamphlets and the use of placards in their shopping center or in the parking lot • Decision based on historical idea of property rooted in possession and in dominion and control. Reliance on the right to exclude. • It is not the role of the court to weight the rights of a private property owner against an individual’s statutory right to lawfully and peacefully picket. It is the role of the legislature to do so. Dissent • Individual property rights of an owner of property are not always protected. • In this case, the right to picket of the individual employee takes priority over individual private property rights of the owner of the shopping plaza. • Laskin recognizes this as a novel case and looks to the law of tort under civil law as instructive or analogous. • Ms. Carswell is a privileged visitor to public areas and has right to stay unless she engages in misbehavior or unlawful activity. (Doctrine of abusive exercise of rights taken from civil law). • Decision based on an idea of property that examines the network of legal relationships prevailing between individuals in respect of things. • Role of the court is to weigh individual property rights of an owner with the statutory right of an individual to lawfully and peacefully picket. • The court is free to depart from precedent in cases where pressing needs require a consideration of the case on its merits. - considered in many different cases o Wildwood Mall Ltd v. Stevens - there was no legislation in Saskatchewan analogous to the petty trespasses act in Manitoba was its distinguishing factor o RWDSU v. Eaton Co. Ltd. - said that they violated the rights of employees  it had adopted a no solicitation policy for the shopping centre  union organizers distributed leaflets on mall property  because the Eaton centre is underground there were no public entrances to the store available except those clearly located on the shopping malls premises  the union asserted that it was in breach of the Ontario Labour relations act that prohibits an employer from interfering with the formation selection or administration of a trade union  court concluded that Cadillac Fairview could not show any interference with their own legitimate activities  the protesting did not disrupt the mall or commercial interest um  Harrison v Carswell does not extend to situations where there is no interference or contact with the shopping public Rule...