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Grosvenor Park Shopping Centre v Waloshin et al (1965) 46 DLR 750 (Sask CA)

Facts:

Parties:
** GPSC (mall property owner, lessor)
** Waloshin et al (picketing employee union workers)
** Loblaws (employer, mall tenant, lessee)

There was a labour dispute at Loblaws, tenant of GPSC. Union workers picketed on mall property, adjacent sidewalk and in parking lot. Fact: unrestricted invitation to the public to enter onto mall property. Leases with all tenants include right of use for employees, customers, etc. GPSC wanted to stop picketing activity, sues for trespass

At trial: interim injunction granted (“interim” means before final resolution of the case)

Issue(s):

Is this trespass? (Does GPSC have sufficient possession of the areas?)

Ratio:

Trespass cannot be committed if the premises cannot be said to be in sufficient possession.

The landlord of a premise leased to tenants, together with easements over common areas, and to which the public had an unrestricted invitation to enter, does not have actual possession of the premises and accordingly cannot maintain an action for an injunction based on trespass in respect of picketing carried on by a union against one of the tenants.

Analysis:

CA’s chain of reasoning: Possession, control, exclusion
** 1. A fundamental principle: If there is sufficient possession = trespass protection
** 2. Defining Possession:
*** A. clear + exclusive + intention
*** B. fact and context specific: nature of property and how it is used
** 3. GPSC has legal title, but has made extensive grants and invitations for access
*** This is consistent with the nature of the property
** 4. GPSC controls property, but not so as to exclude people
*** Control does not necessarily entail possession
** 5. Therefore, GPSC is not in possession = no trespass protection

Holding:

Appeal allowed: Insufficient actual possession = no trespass protection

Comments:

Quick summary: During a labour dispute where workers picketed at a shopping centre, the property owner was unsuccessful in suing the picketers for trespass. Because shopping centres offer an unrestricted invitation to enter, it did not have sufficient possession for trespass protection.


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