A recent decision from the Supreme Court of Canada has clarified that municipally owned parkland in Ontario is not protected from adverse possession claims unless it is explicitly exempted by statute.

Background

In 2017, the appellant owners purchased a home in Toronto that backs onto a municipally owned laneway separating their property from a large public park. Several years later, they discovered that a portion of their backyard (the “Disputed Land”), which was enclosed within their fence, was in fact owned by the City of Toronto (“City”).

The tract of land comprising the Disputed Land, the laneway, and the park was expropriated by a conservation authority in 1958 and subsequently conveyed to the municipality in 1971. Between 1958 and 1971, a fence was constructed around the property’s backyard, effectively preventing public access to the Disputed Land. Over the following decades, successive homeowners openly, exclusively, and continuously maintained and occupied the Disputed Land, paying property taxes based on a lot size that included this area, with the City accepting these payments until 2020.

When the appellant owners attempted to purchase the Disputed Land from the City, their request was denied due to a municipal policy discouraging the sale of lands in its green space. As a result, they brought a claim for adverse possession, seeking a judicial declaration that the Disputed Land had become their property. The City opposed the claim, arguing that municipal parkland should be protected from adverse possession.

Findings of the Courts

Ontario Superior Court of Justice

The application judge found that the appellant owners’ claim would have met the traditional test for adverse possession as the Disputed Land was fenced in by the previous owners since at least 1971, with no objection from the City. The Court determined that the use of the Disputed Land was open, notorious, peaceful, adverse, exclusive, actual, and continuous for well over the statutory ten-year period.

However, while the facts supported the claim, the application judge dismissed the application on public policy grounds, holding that publicly owned land of this kind is immune to claims for adverse possession.

Ontario Court of Appeal

The majority of the Court of Appeal upheld the application judge’s decision, but for different reasons. The Court applied a “public benefit test,” finding that lands held for public use should not be lost to private parties through adverse possession unless there is clear evidence that the municipality had waived its rights or acknowledged or acquiesced in the possession, none of which had occurred in this case.

Supreme Court of Canada

At the Supreme Court of Canada, the majority allowed the appeal. The Court held that creating a new common law immunity for municipal parkland would be inconsistent with the statutory framework established by Ontario’s Real Property Limitations Act (“RPLA”). The Court emphasized that the RPLA provides a comprehensive and exhaustive list of lands exempt from adverse possession, which does not include municipal parkland. The Court further stated that it is not the judiciary’s role to introduce new exemptions on the basis of public policy; any such changes must be made by the legislature.

Importantly, the Court rejected the Court of Appeal’s “public benefit test”, which would have required a claimant to demonstrate that the municipality expressly consented to the possession. The Supreme Court noted that such a requirement would effectively nullify the doctrine of adverse possession, as possession with permission cannot be considered adverse..

Takeaways and Conclusion

The Supreme Court of Canada’s decision in Kosicki v. City of Toronto (Kosicki) establishes that municipal parkland in Ontario is not immune from adverse possession claims unless specifically protected by legislation.  Although the case involved municipal parkland, the ruling has potential implications for a wide range of municipal properties.

Kosicki underscores the need for Ontario municipalities to take a more vigilant and systematic approach to land management. Without statutory protection, public lands are vulnerable to adverse possession, making ongoing oversight and prompt action to address encroachments essential.

The decision also reinforces the principle of legislative supremacy, confirming that only the legislature—not the courts—has the authority to expand the categories of public land exempt from adverse possession. As a result, the ruling leaves open the possibility for the Ontario legislature to amend the Real Property Limitations Act in the future to specifically protect municipal parkland from adverse possession claims.