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MacDonald v Hees (1974), 46 DLR (3d) (NS TD)


MacDonald (P) claims against Hees (D) for injury, loss and damage from assault.

P while looking for D knocked on door, thought he was invited in, entered the premise and without hesitation was forcibly ejected by D. While being ejected he was pushed back such that his head broke the screen door glass, cutting the back of his head.

D in his defence, denied any assault; and if he did use force, it was justified in law due to the unlawful entry of the P and invasion of D’s privacy.


Was D able to use the defence of: defence of real property?


Use for force to defend property only justified when it was reasonable and after the intruder has been given the opportunity to leave. When intruder enters forcefully, the occupier may use force immediately.


Cowan J:
** Unlawful entry: it is lawful for an occupier of land, or for any other person with the authority of the occupier, to use a reasonable degree of force in order to prevent a trespasser from entering or to control his movement or eject him after entry.
** To defend property:
*** Cannot repel or eject until a request has made for the offending party to leave and reasonable opportunity for them to do so.
*** If a person seeks to enter by force then you may repel them using force, only reasonably force.

In the case at bar:
** P did not forcefully enter. There was no reasonable notice. The force used by D was not justified and was excessive.


Decision in favour of P.


It is implicitly possible for a person renting a hotel room to be defending their property.

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