Kosicki v. Toronto (City), 2023 ONCA 450, 2025 SCC 28 (40908)
“In 2017, the applicants purchased a residential property in Toronto. The property backs onto a laneway owned by the municipality, which separates the property and its neighbouring properties from a large municipal park. Several years after purchasing the property, the applicants learned that the municipality was the title holder of a portion of their backyard (“disputed land”). The tract of land made up of the disputed land, the laneway, and the park had been expropriated by a conservation authority in 1958 and conveyed to the municipality in 1971. Sometime between 1958 and 1971, a fence was erected around the property’s backyard, preventing public access to the disputed land.
The applicants enquired about purchasing the disputed land from the municipality, but it refused based on a policy discouraging the sale of lands, such as the park and the disputed land, that were registered in its green space. The applicants therefore sought an order for possessory title to the disputed land. The application judge identified that a public benefit test for adverse possession of public land had been articulated in certain other lower court decisions, and considered whether it had been met in the instant case to defeat the applicants’ possessory claim. She concluded that the public benefit test was not satisfied because of the municipality’s failure to demonstrate that the disputed land had ever been used by the public before the erection of the fence. Despite this conclusion, she dismissed the application, holding that the disputed land was originally acquired for an important public interest purpose and that, as a matter of public policy, a private landowner may not fence off public lands and exclude the public and then succeed in a claim for adverse possession.
The majority of the Court of Appeal upheld the application judge’s decision, but reframed the public benefit test, removing the requirement of actual use. It stated that adverse possession claims will not succeed where the land was purchased by or dedicated to the municipality for the use or benefit of the public, and the municipality has not waived its presumptive rights over the property, or acknowledged or acquiesced to its use by a private landowner. The majority found that Ontario’s Real Property Limitations Act (“RPLA”) did not preclude the further development of the common law in relation to lands not explicitly addressed in s. 16 of the RPLA, which immunized certain lands from adverse possession, and that the refinements made to the public benefit test did not contravene s. 16 as they did not provide an absolute immunity from possessory claims for municipal parkland, but created a rebuttable presumption that such land is unavailable for adverse possession. The dissenting judge would have confirmed the applicants’ title to the disputed land since they had satisfied the requirements contained in the RPLA to establish possessory title. In his view, a common law public benefit test would inappropriately amend the provisions of the RPLA, and there was no sound basis for the creation of a broad immunity from adverse possession for municipal parkland.”
The SCC (5:4) allowed the appeal.
Justice O’Bonsawin wrote as follows (at paras. 3-4):
“… the RPLA, which extinguishes both the title and the right of the paper title holder to recover the land 10 years after dispossession, governs this dispute. The legislature has exempted certain public lands from the application of the RPLA for over a century. New exceptions for additional categories of public land have been enacted in related statutes since the last amendments to the RPLA. Although these new exceptions grant explicit protection to provincial parkland from the application of the RPLA, they do not mention municipal parkland. Moreover, despite prospectively abolishing the possibility of acquiring possessory title for land registered under the Land Titles Act, R.S.O. 1990, c. L.5 (“LTA”), the legislature has preserved matured possessory claims. The preservation of acquired possessory title is also consistent with the RPLA’s purpose as a statute of repose. In this statutory context, to recognize a new common law exception in addition to the exceptions the legislature has set out in s. 16, which would serve to retroactively deprive a claimant of acquired possessory title, would defeat the legislature’s intent. …Under the applicable statutory rules, the City’s title to the land was extinguished over four decades ago. To accept the City’s argument would be to interfere with the appellants’ matured possessory claim and disregard the applicable statutory scheme.”