Introduction
Private landowners who have met the requirements for adverse possession can acquire title to land even if it is part of a municipally-owned park, based on the recent decision of the Supreme Court of Canada (the “SCC”) in Kosicki v Toronto (City).[1]
In the underlying application, both the appellant property owners and the City of Toronto (the “City”) agreed that the test for adverse possession had been met for a portion of Étienne Brûlé Park (the “Park”) that had been fenced in as part of the backyard of the appellants’ property. While certain types of publicly-owned land are expressly exempt from adverse possession by operation of the Real Property Limitations Act (the “Act”) and related legislation, municipal parkland was not one of them.[2]
The issue on appeal was whether these statutory protections against claims of adverse possession could be expanded by the common law to apply to municipal parkland. The four-person minority of the SCC would have upheld the decision of the Ontario Court of Appeal to create a presumption in common law that lands designated by a municipality for public use or benefit are immune from adverse possession (the “Public Benefit Test”). The majority declined to find such a test applied, and determined that the Act and related legislation could not be supplemented by the common law in this way.
On this basis, the SCC confirmed that municipal parkland is not protected from adverse possession.
Background
The appellants purchased their home (the “Property”), which backs onto the Park, in 2017. The lands that form the Park were expropriated by the Metropolitan Toronto and Region Conservation Authority (a former public authority tasked, at its creation, with preserving land primarily for flood control purposes) in 1958 and conveyed to the City in 1971. Sometime between 1958 and 1971, the previous owners of the Property fenced off their backyard, inadvertently enclosing a portion of the Park along with it (the “Disputed Land”). In 2021, after learning of the mistake, the appellants unsuccessfully attempted to purchase the Disputed Land from the City. The question then became whether the Disputed Land had become adversely possessed by the appellants.
To establish possessory title under the Act, a claimant must first show that the property has been dispossessed by its previous owner for a period of ten years. The elements required to establish dispossession are defined by the common law. The Act, together with related legislation, then further limits the types of land that can be adversely possessed. Section 16 of the Act, for example, exempts road allowances and waste or vacant Crown land from adverse possession.
The parties agreed that the appellants had met the requirements for adverse possession under the Act. Further, the municipal parkland at issue did not fall into any of the categories of land exempt from adverse possession, as expressly identified by the Act and related legislation. The City nevertheless argued that municipal parkland is subject to a common law exemption from adverse possession, and that public interest weighed strongly in favour of keeping municipal parkland available to the public.
Lower Court Decisions
Both the application judge and a majority of the Ontario Court of Appeal found that while the appellants had met the requirements for a claim of adverse possession, the claim could not be allowed to succeed. The application judge ultimately rested her decision on public policy grounds, but in doing so, considered whether the common law Public Benefit Test applied. A majority of the Ontario Court of Appeal relied upon and clarified this Public Benefit Test, finding that it prevented the appellants’ application for adverse possession. The appeal was dismissed.
Dissent (of the Supreme Court of Canada)
Justice Kasirer, writing for a four-member minority of the SCC, would have upheld the Court of Appeal’s judgment and the application of the Public Benefit Test. In their opinion, the Public Benefit Test created a presumption that land designated by a municipality for the use or benefit of the public is shielded from adverse possession.[3]
In order to defeat this presumption, a claimant would have to demonstrate that the municipality had either changed the use of the land from one that benefited the public, or had acquiesced to the adverse possession. To prove acquiescence, an applicant would have to demonstrate that the municipality had actual or constructive knowledge of the adverse possession.[4]
Justice Kasirer ultimately concluded that this formulation of the Public Benefit Test was consistent with the statutory regime for preserving and limiting claims of adverse possession, centered on the Act.[5]
Supreme Court of Canada Decision
The SCC allowed the appeal, and granted the application for title of the Disputed Land.
Justice O’Bonsawin, writing for the majority, viewed the question of whether the Act and related legislation created a closed statutory regime for adverse possession as a matter of statutory interpretation. She applied the “modern approach” to statutory interpretation (being a textual, contextual and purposive reading of the legislative language at issue).[6]
In its analysis, the Court observed that the legislature had multiple opportunities over hundreds of years to limit the application of adverse possession on municipal parkland, and chose not to do so.[7] The clearly-delineated list of exceptions found in section 16 of the Act stood in contrast to the broad application of the remainder of the Act, suggesting that the legislature had considered these exceptions carefully.[8]
In reviewing the legislative history of the Act and related legislation at length, the Court found that it had been amended periodically to “modify, or in some instances reject, the common law.”[9] As recently as 2021, legislation was amended to limit the effect of adverse possession on particular types of public land (but not municipal parkland).[10] This suggested that the legislature was aware of the limitations of both the Act and the common law.
The Court identified public policy arguments both for and against adverse possession generally and on the facts of the case, and concluded that “whether the doctrine of adverse possession retains its utility in the current landscape is a policy question for the legislature.”[11] The Act and related legislation were intended to form a closed list of exceptions to matured claims for adverse possession and could not be supplemented at common law. In the majority’s view, the Public Benefit Test articulated by the Ontario Court of Appeal (and the dissent, discussed above), while not technically an immunity for municipal parkland, would operate as one in most instances by requiring a municipality to acquiesce to adverse possession.[12] Recognizing such a novel immunity would undermine the Act and related legislation in creating clearly-defined, statutory exceptions to adverse possession.[13]
Conclusion
The SCC’s decision in Kosicki v Toronto (City) generally means that mature claims for adverse possession of municipal parkland will not be treated differently from other claims for adverse possession. Property owners who were aware of such a potential claim, but had been hesitant to act based on their judicial treatment, may now choose to proceed with an application for title.
Moreover, municipalities in Ontario have regularly claimed that their property cannot be the subject of adverse possession, citing the Public Benefit Test. The SCC’s decision narrows the treatment of this test.
It is important to note that adverse possession has generally been halted by the introduction of the Land Titles Act in Ontario.[14] No new adverse possession claims can materialize for properties in the Land Titles system, including municipal parkland. Fully matured claims, such as the claim advanced by the appellants, however, are preserved. This state of affairs bolstered the SCC’s response to the City’s argument that all municipalities would be required to closely monitor their property lines, at great cost to the taxpayer.
As the discovery and realization of these claims continue to come to light across the province, it remains to be seen whether the Legislature of Ontario will take steps to limit the erosion of municipal parkland, or if the Real Property Limitations Act is working as intended, as the SCC suggested.
For any questions, please contact Brandon Barnes Trickett, Michael Beeforth, Roberto Aburto or Tom Nichini. The authors wish to thank Leighton Zink, articling student, for his assistance with this article.
[1] 2025 SCC 28 [Kosicki].
[10] Public Lands Act, RSO 1990, c P.43; Provincial Parks and Conservation Reserves Act, 2006, SO 2006, c 12.
[14] RSO 1990, c L.5; Kosicki at para 54.
