Small Claims Court Limits Trespass Damages Due to Legislative Constraints

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: [NAME] v. [NAME] , 2026 NSSM 6 Date: 20260320 Claim: No.   54 9075 Registry: Antigonish Between: [NAME] Claimant and [NAME] Defendant

DECISION Adjudicator: [NAME], K.C., Adjudicator Heard: February 24, 2025 via TEAMS in Antigonish, Nova Scotia Counsel: [redacted] [NAME] was self-represented By the Court: [ 1 ]              The Claimant, [NAME], asserts that the Defendant, [NAME], allowed his friend and relative, [NAME], to drive an excavator across his property without first seeking [NAME]’s permission. This intrusion into [NAME]’s property occurred on or about November 17 or 18, 2025. [ 2 ]              [NAME] also claims that both [NAME] and [NAME] also walked across his land several times after the excavator’s incursion. They had his permission to do so originally, but [NAME] soon revoked his permission. [ 3 ]              [NAME] testified that the invasion of his property put him under great mental distress. He alleges that his property was impacted. Trees were taken down by the excavator. Excavator tracks were imprinted into the ground. Brush was taken out by the machine and hidden under leaves and foliage to avoid detection. [ 4 ]              [NAME] originally sought $25,000 as compensation, which is the maximum monetary jurisdiction of this court. He told the court during a pre-trial that this figure was written in his Notice of Claim as a placeholder only. He is actually seeking a little over $4,000 in compensation for damage to his land, as well as compensation for the distress the trespass caused him, plus court costs. [ 5 ]              The Defendant, [NAME], did not contest that he authorized an excavator’s entry upon [NAME]’s property without his permission, or at least did not vigorously defend against this allegation. Instead, his main argument was that [NAME] was asking way too much compensation for the alleged trespass. [ 6 ]              Only two witnesses were sworn and testified during the trial: [NAME] and [NAME]. Mr., [NAME] did not testify. [ 7 ]              [NAME]’s evidence is subject to a weight adjustment from this court. He was asked to leave the immediate vicinity of the computer which [NAME] was using to participate in the TEAMS hearing as part of a granted exclusion of witnesses’ motion made by [NAME]. Instead, he was likely less than 10’ away from the computer when he was summoned to give evidence, given the mere moments it took for him to appear on camera when he was called to give evidence. He would have heard all of [NAME]’s evidence as well as [NAME]’s cross-examination conducted by [NAME]. [ 8 ]              This is not fatal to the credibility and reliability assessments the court must make concerning his evidence. Where there was a variation in the testimony between [NAME] and [NAME], I must take into account that [NAME] may have arranged his evidence to be more in accord with [NAME]’s evidence. Did a Trespass Occur? [ 9 ]              [NAME] detailed in his evidence that, due to prior relationship difficulties with his ex, he posted many “No Trespassing” signs throughout his wooded property. This was demonstrated in his photos (Exhibit One) and in photos contained in his thumb drive (Exhibit Two, sub-exhibits two and nine). [ 10 ]          This would have alerted anyone who saw these signs that [NAME] took his privacy very seriously. [ 11 ]          [NAME] was questioned by the court concerning whether he ever granted prior permission for [NAME] to enter upon his land. [NAME] responded that there was a relevant conversation between him and [NAME] that occurred one-to-two years before the excavator arrived. [ 12 ]          In this conversation, [NAME] asked to access [NAME]’s property for the purpose of construction of a culvert on [NAME]’s property. [NAME] wanted to build a road on his own land that he could use to access his own property from the nearby highway. The easiest way to do so was to access [NAME]’s land so a road on [NAME]’s land, including a culvert, could be constructed. [ 13 ]          [NAME] even offered to construct a road on [NAME]’s property, which seemed to be of interest to [NAME]. [ 14 ]          According to [NAME], which was not contested by [NAME], nothing firm was decided during this conversation. [NAME] never consented to having any heavy machinery accessing his property. His final response to [NAME]’s request at that time was “maybe”. [ 15 ]          The court finds that [NAME]’s non-committal response to [NAME] led to [NAME]’s frequent calls and visits to [NAME]’s home in 2025. These attempts to contact [NAME] were made for the purpose to request access to [NAME]’s land to build the culvert. These calls and visits were recorded in the timeline attached to [NAME]’s Defence. [ 16 ]          [NAME] was not available to be contacted as he was away in Halifax attending a course. [ 17 ]          The court finds that [NAME]’s inability to contact [NAME] led to [NAME], perhaps out of frustration, authorizing [NAME] to drive the excavator across [NAME]’s land in order to build a road. [ 18 ]          Initially, it appeared that [NAME] was prepared to approve and excuse this trespass. [NAME] testified that when he was operating the excavator on November 17 or 18, [NAME] appeared at the side of the excavator. He offered [NAME] a beer in his home, which [NAME] accepted. [ 19 ]          The next day, [NAME] and [NAME], while walking across [NAME]’s land, were met by [NAME]. [NAME] was now angry about the excavator driving across his land. The conversation ended with [NAME] forbidding any further machinery on his land. [NAME] could cross it on foot, however. [NAME] agreed to this new arrangement without argument. [ 20 ]          [NAME] subsequently arrived at [NAME]’s doorstep with a case of beer, offering an apology on behalf of [NAME] for the excavator’s intrusion. [NAME] accepted the beer, but he did so, [NAME] testified, when he was drunk and suffering from a mental health episode. [ 21 ]          [NAME] testified that, to his perception, [NAME] was not drunk when he arrived with the beer. The incident seemed (to him) to be settled. [ 22 ]          Not long thereafter, on November 24, 2025, [NAME] denied any foot traffic by [NAME] across his property whatsoever. [ 23 ]          [NAME] reached out to the RCMP to enforce his property rights. The RCMP wrote to [NAME] to advise them to stay off [NAME]’s land or face trespass charges and prosecution. A copy of this letter can be found in the thumb drive, Exhibit Two, sub-exhibit one. [ 24 ]          The court considered the evidence as whole. The deficit identified in [NAME]’s testimony, where his exclusion from the telephonic courtroom was not as thorough as was expected, was also considered. [ 25 ]          The court finds that a trespass did occur. The court relies upon the case of Faryna v. Chorny , [1952] 2 D.L.R. 354 (BC CA) at p. 357: “… the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” [ 26 ]          The fact that [NAME] took such frequent steps to try to contact [NAME] to get his permission to drive an excavator across his land tells the court that he did not get permission in the conversation some years before to enter [NAME]’s land. [NAME] took a chance that [NAME] would approve of his trespass after-the-fact. [NAME] did not condone this trespass. [ 27 ]          [NAME] may have been accepting of the excavator on his land in his initial meeting with [NAME], he was entitled to change his mind, which he did. No prior permission to be on [NAME]’s land was obtained by [NAME]. [ 28 ]          The court finds that [NAME] authorized [NAME] to commit trespass upon the land of [NAME], in the hope that [NAME] would not object. Damages [ 29 ]          The real issue in this case is what damages are then owed to [NAME]. Despite many photos (Exhibits One and Two) and two videos of the [NAME] property (Exhibit Two, sub-exhibits six and 13), the court could find no real observable evidence of actual damage to his property. [ 30 ]          [NAME] testified that all he took down with the excavator was a thin, dead birch tree in [NAME]’s wooded lot. There were also tread marks left on [NAME]’s land by the excavator which were uncontested by [NAME]. [ 31 ]          No damage appeared to have been done to the property when [NAME] crossed the property by foot. [ 32 ]          [NAME] referred in his testimony to Exhibit Two, sub-exhibit 16 to show where his shrubs and trees had been removed by [NAME]. This removal, he testified, made [NAME]’s property much more visible from the road. Given that Nova Scotia is suffering from a spree of break-and-enters these days, this is not a welcome development at all as far as [NAME] is concerned. [ 33 ]          While this may be so, the court does not see actual damage done to his property. There are no collections of tree stumps, cut brush or other debris showing that the land had been significantly devalued. [ 34 ]          [NAME] posited that this was because the damage was hidden under leaf cover, deliberately done by [NAME] and/or [NAME]. But the leaf cover was not so thick that it could disguise such destruction as [NAME] described. [ 35 ]          The court finds that there was no proof of actual damage to [NAME]’s property save for taking down of a dead tree and tread marks on the ground. This does not mean, however, that [NAME] is disentitled to damages. [ 36 ]          Where there is no proof of actual damage, the case of [NAME] v. [NAME] , 1993 CanLII 6873 (B.C.C.A.) is instructive. In this case, the [ADDRESS] of Appeal relied upon Halsbury’s Laws of England , 4 th ed., Vol. 45 at para. 1403 to describe different levels of damages in such situations. The court in [NAME] at para. 20 of its decision quoted these five levels as follows: In an action of trespass, if the plaintiff proves the trespass he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the plaintiff actual damage, he is entitled to receive such amount as will compensate him for his loss. Where the defendant has made use of the plaintiff’s land, the plaintiff is entitled to receive by way of damages such a sum as would reasonably be paid for that use. Where there is an oppressive, arbitrary or unconstitutional trespass by a government official or where the defendant cynically disregards the rights of the plaintiff in the land with the object of making a gain by his unlawful conduct, exemplary damages may be awarded. If the trespass is accompanied by aggravating circumstances which do not allow an award of exemplary damages, the general damages may be increased. [ 37 ]          As mentioned, this intrusion caused [NAME] much mental distress. [NAME] made an inquiry for psychotherapy assistance as recently as February 3, 2026 for the trauma he reported that he suffered as a result of property rights insecurity- see Exhibit Two, sub-exhibit 18. [ 38 ]          He was afraid that the van he saw on his neighbour’s property at the time of the alleged trespass was of the type that human traffickers use to kidnap people. He is the father of young girls, and was concerned about the presence of this unknown van (it was actually [NAME]’s vehicle, parked so that he could work on [NAME]’s property). [ 39 ]          [NAME] also had his property migrated to shore up his title to his property- see Exhibit Two, sub-exhibit four. [ 40 ]          The impact upon [NAME] could be addressed by awarding exemplary  damages. Unfortunately, Small Claims Court is legislatively unable to award this type of damages. The court’s enabling statute, the Small Claims Court Act , R.S.N.S. 1989, c. 430 (as amended) does not permit the granting of such damages. [ 41 ]          The court does have the ability to award general damages which may be increased in lieu of exemplary damages. These general damages are capped at $100- see s. 10(e) of the Act . [ 42 ]          The court finds that general damages are owed to [NAME]. [NAME]’s conduct did not rise to the level of a cavalier disregard for the property rights of [NAME]. He did try to secure permission, but failed. [ 43 ]          [NAME]’s conduct was not inadvertent, though. The court finds that his trespass was driven by frustration in trying to obtain [NAME]’s consent and the need to get his own property’s improvements moving. The court finds that [NAME]’s conduct amounted to indifference to [NAME]’s property rights. [ 44 ]          Considering the impact the trespass had upon [NAME], which the court accepts was substantial, the court awards [NAME] $100.00, the maximum amount of general damages the court can award. In addition, $199.35 in court filing fees are awarded, for a total of $299.35. [ 45 ]          The court is aware that this award is far less than what [NAME] was expecting. The court’s constraints in awarding damages, placed on it by the legislature, are binding. [ 46 ]          The award should serve as a warning to [NAME] to not act impulsively in permitting heavy machinery to be driven over land which is not his without first obtaining consent of the property owner. It will hopefully provide some security to [NAME] that his property will not be intruded upon again by [NAME]. [ 47 ]          Order accordingly. [NAME], D. Small Claims Court Adjudicator