Protest at West Eggleston

This hypothetical problem involves a group of protestors charged under section 4 of Nova Scotia's Protection of Property Act, RSNS 1989, c 363. Please read the facts carefully, followed by the linked reading material, and think about whether or not a court would be likely to find that the protestors are 'guilty of an offence' and 'liable to a fine of not more than five hundred dollars.'

West Eggleston (“West Egg”, for short) is a small, coastal residential community in rural Nova Scotia that recently attracted a short-lived but very public protest outside its gates.

The land in West Egg has a long history and involves a complicated web of legal relationships. West Egg itself was built in the early 1970s by a group of people worried about the rising cost of housing in their region. The group incorporated a small co-operative organization and raised enough money to purchase the twenty-five hectares on which West Egg now stands from a real estate developer then facing insolvency. The co-operative went on to develop housing on the land and sold off individual plots at below-market prices to individual purchasers but retained ownership of the infrastructure (roads, water and sewer, parks, etc), which it continues to own and operate for the benefit of the residents. The co-op’s Board and its membership are comprised entirely of community residents.

Over time, as housing prices across Nova Scotia continued to rise–especially in the city–demand for the comparatively affordable plots in West Egg skyrocketed. Wealthier individuals started to move in and build larger, pricier houses. Using their growing influence among the co-op’s membership, they also began to push for new community amenities. A few years ago, the co-op voted to install a large wrought-iron gate about half-way up the private road leading into the community from the public highway. When closed, the gate made the remainder of the road accessible only to residents and others with an electronic pass card. The community also posted a sign on the gate reading “Private Property”. A few months after installing the gate, however, it had become the practice of residents to leave it open during the day and to close it only at night–in part because non-residents visited frequently to enjoy the seaside views from one of the community’s many look-off points.

The protest at West Egg started the day after a local news story was published about an individual from Halifax who offered to purchase a house for sale in the community but was refused, without reason, by the seller. The story explained that the prospective purchaser, who is Black, offered well above the asking price and had learned through their own inquiries that there were no competing offers on the house. The prospective purchaser believed the seller’s refusal was motivated by anti-Black racism. West Egg’s current residents are predominantly white.

As soon as a small group of protesters gathered in the wake of the news story–on the private road leading into West Egg–to challenge the seller’s actions, the community’s gates were closed, barring them entry. As public attention to the incident grew, the reporter who wrote the original story discovered that the insolvent real estate developer who sold the land to West Egg’s co-op back in the 1970s had purchased it from the Catholic Church for a huge sum, planning to build a luxury seaside resort. Once these facts were uncovered, the original protestors were joined by activists demanding reparations addressing the historical and ongoing harms to Indigenous communities from residential schools and to the broader pursuit of land justice in Mi’kma’ki. Others used the stark image of West Egg as an elite gated community to underscore the crisis of affordable housing in the province and the inability for hundreds of unhoused people to meet their basic needs on a daily basis. Some of West Egg’s earliest and longest residents, worried about the direction their community had taken lately, also joined in.

After a few days of these protests, the co-op’s Board demanded that the protestors move their activities to the nearby public highway, which would make it effectively impossible for the activists to sustain their action. When the protestors refused to move, the Board decided to pursue convictions for trespass under the Protection of Property Act.

Based on your reading of Harrison v Carswell, do you think the protestors would be successful in defending against a claim in trespass under the Protection of Property Act? Give your reasons.