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In Kosicki v Toronto (City), 2025 SCC 28 [Kosicki], a narrow five-to-four majority of the Supreme Court of Canada (“SCC”) granted a Torontonian couple possessory title to a municipally owned strip of land in their backyard. Although Kosicki clarifies the law of adverse possession, the divided judgment reveals challenges in reconciling the common law with legislative intent.
Background
In 2017, the applicants purchased a home in Toronto. Unbeknownst to them, the City of Toronto (“City”) was the titleholder of a portion of their backyard designated as parkland (the “Disputed Land”). The chain link fence enclosing the backyard was erected at least five decades ago. The applicants had been paying property taxes on their land, including the Disputed Land, for several years. Upon discovering a discrepancy in ownership, they brought an application to the Ontario Superior Court of Justice (“ONSC”) seeking an order for possessory title to the Disputed Land (Kosicki, paras 5-8).
Before turning to the Court’s analysis, it is important to review the common law doctrines and legislation at play. The law of adverse possession is a long-standing common law doctrine, also known as squatter’s rights. If a trespasser succeeds in a claim for adverse possession, the rights of a titleholder in land is extinguished in favour of the trespasser. The trespasser must establish (Kosicki, para 27):
(1) actual possession of the land by the trespasser (actual possession requires that the act of possession be “open and notorious, adverse, exclusive, peaceful, actual and continuous”) for a prescribed statutory period (10 years in Ontario); and
(2) an intention to exclude the true owner from their property; and
(3) effective exclusion of the true owner from their property.
The application of adverse possession is intertwined with statute. Over time, provincial legislatures across Canada have codified the operation of adverse possession: introducing minimum statutory periods to establish adverse possession, creating exemptions, and, in some cases, abolishing the doctrine entirely. The doctrine of adverse possession remains alive in Ontario, subject to the Real Property Limitations Act, RSO 1990, c L15 [RPLA], the Land Titles Act, RSO 1990, c L5 [LTA], as well as other applicable statutes.
Section 16 of the RPLA, which plays a key role in Kosicki, grants immunity to enumerated lands (such as waste or vacant Crown land) from adverse possession. However, the legislation does not expressly mention municipal parkland.
Another key statutory provision is subsection 51(1) of the LTA, which eliminates adverse possession over lands electronically registered under the LTA. However, subsection 51(2) clarifies that subsection 51(1) does not take away the right to possessory claims in cases where possession has already matured prior to electronic registration of the land (i.e., met the minimum 10-year statutory period).
The justifications for adverse possession arise on the basis of privately owned land. For public land, the public benefit test arose to protect lands held for the public benefit from adverse possession at common law. Kosicki was the first opportunity for the SCC to review the public benefit test with respect to adverse possession over municipal land.
Judicial History
ONSC: dismissal on public policy grounds
Donohue J. of the ONSC dismissed the application (2022 ONSC 3473), on grounds that granting a possessory claim over the Disputed Land would be a dangerous precedent as it puts a heavy burden on municipalities to patrol its lands against adverse possessors (Kosicki, paras 9-12).
ONCA (majority): dismissal according to the public benefit test
Sossin J. and MacPherson J. of the Ontario Court of Appeal (“ONCA”) dismissed the appeal (2023 ONCA 450) on grounds that the public benefit test immunized the Disputed Land from adverse possession. The majority found that the City is not required to demonstrate actual public use of the land to satisfy the public benefit test. Rather, the fact that the municipality acquired the land for the public benefit sufficed as a presumption that adverse possession was not available in the circumstances (Kosicki, paras 13-15).
ONCA (dissent): would have allowed the appeal in accordance with legislation
Brown J., in dissent, wrote that expanding the scope of the enumerated exceptions in section 16 of the RPLA using the common law public benefit test was not appropriate. He would have allowed the appeal because the applicants had met the requirements for adverse possession and municipal parkland was not an express exemption in the legislation (Kosicki, para 16).
Issues
There was no dispute that the applicants had satisfied the common law test for adverse possession and that the Disputed Land did not fall within the exceptions expressly set out in section 16 of the RPLA or other statutes (Kosicki, paras 2 and 30).
The issue was whether, nevertheless, the Court should refuse to extinguish the City’s ownership rights to the Disputed Land (Kosicki, para 17).
SCC: The Five-Judge Majority
O’Bonsawin J. on behalf of the majority upheld the appeal, granting possessory claims to the applicants on grounds that the legislation had not exempted the municipal parkland from adverse possession, and that legislation, not the public benefit test, strictly governed the dispute.
O’Bonsawin J. applied statutory interpretation tools to determine the legislative intent underlying the RPLA by looking at the text, the “entire context” and its “purpose” (Kosicki, para 20). The majority found that the language of the RPLA is clear: section 16 exempts certain lands, but the Disputed Land is not one of them (Kosicki, para 40). The omission of municipal lands was found to be intentional because, although section 16 has not been amended since 1922, the legislature had “repeatedly turned its mind to claims for possessory title, including with respect to public lands” (Kosicki, para 42).
Notably, O’Bonsawin J. pointed to the adoption of the Torrens-based land title system under the LTA, highlighting that subsection 51(2) preserves matured possessory claims prior to electronic registration. Thus, it can be inferred that the collective intent of the RPLA and LTA was to allow possessory claims (subject to the enumerated statutory exceptions) as long as the minimum statutory period for possession was met prior to registration (Kosicki, paras 54-57). Here, the fence had been erected at least three decades prior to electronic registration of the Disputed Land, thus, the possessory claim had matured and was statutorily available to the applicants.
SCC: The Four-Judge Dissent
Kasirer J. on behalf of the dissent would have dismissed the appeal. He found that the common law public benefit test is applicable and immunizes the Disputed Land from adverse possession because the common law and legislation operate “in parallel” (Kosicki, para 161). For fairness, he would have granted the applicants the right to claim reimbursement for the corresponding portion of property taxes paid on the Disputed Land (Kosicki, para 97).
The dissent provided a comprehensive account of the traditional justifications for adverse possession: encouraging productive use of land, discouraging titleholders from sleeping on their rights, encouraging titleholders to monitor their property to prevent trespassing, and promising stability with respect to land boundaries (Kosicki, para 87).
Kasirer J. rightly pointed out that the first three justifications are not compatible with adverse possession over public lands. In fact, it would be dangerous to penalize the City for failing to monitor municipal property spanning 8,000 hectares, the cost of which would be borne by taxpayers (Kosicki, para 89). Further, it would be unfair to deprive society from parks and other public land in favour of a private landowner (Kosicki, para 89). Accordingly, he found that the courts have rightfully expressed hesitation toward granting possessory claims over public land and endorsed the public benefit test as described by the ONCA (Kosicki, para 116).
With respect to legislation, Kasirer J. pointed out that the RPLA, according to its text, does not transfer possessory title from the titleholder to the adverse possessor, rather, it merely extinguishes the rights of the titleholder (Kosicki, para 146). Since the RPLA does not guarantee possessory title to the applicants, he concluded that the public benefit test does not conflict with legislative intent (Kosicki, para 153).
Kasirer J. highlighted that the RPLA does not oust the common law, instead, section 16 introduces “specific statutory exemptions that continue to operate within the broader framework of the common law” (Kosicki, para 165). Therefore, according to the dissent, the common law exceptions that immunize certain lands from adverse possession, including the Disputed Land, remain applicable and govern this dispute.
Analysis
The different sets of reasons at all three levels of court highlight broader issues with respect to granting possessory claims over public land.
Dangers arising from granting adverse possession over public lands
Donohue J. of the ONSC, Sossin J. and MacPherson J. of the ONCA, and Kasirer J. of the SCC on behalf of the four judges in dissent, were reluctant to grant adverse possession over municipal land. They noted that public authorities should not be expected to patrol their lands to the same extent as a private landowner. But how dangerous is this outcome?
O’Bonsawin J. noted that, as of 2013, only less than 0.1% of lands were not yet converted to electronic land titles (Kosicki, para 55). It is important to note, however, this statistic does not capture the Disputed Land here (registered lands with matured possession prior to electronic registration). Thus, it is debatable whether the risk is as negligible as the majority described.
However, this is not necessarily relevant. The majority rightly held that the courts are not well-positioned to address such a policy issue, especially since the actual impact on public resources is not known: The City had not provided any evidence that extensive resources and efforts are required to protect parkland from possessory claim (Kosicki, para 56). Therefore, the legislature is a more appropriate forum to weigh such policy concerns.
Dangers arising from interfering with legislative intent
At the same time, there is something to be said about the dangers of encroaching upon legislative supremacy. The delicate interplay between legislation and common law necessarily requires courts to ensure their decisions are not inconsistent with the intent of the legislature.
Kasirer J. on behalf of the dissent rightly pointed out that “courts should avoid deciding matters in a way that would render any part of the RPLA meaningless, which could be understood as indirectly transgressing legislative intention” (Kosicki, para 171). However, it could be argued that the dissent went one step too far in endorsing a public benefit test because it captures and, as a result, makes redundant the more specific exceptions set out in the RPLA. Viewed this way, broadening a zone of exemptions that are not specifically enumerated in legislation could in fact have the effect of frustrating the legislative scheme.
Finally, there is good reason to give effect to the preservation of possessory rights set out in subsection 51(2) of the LTA, as it addresses possessory claims that have matured, in most cases, approximately two decades ago. Given the significant passage of time, it can be difficult (if not impossible) to determine whether the original possession was truly adverse or consensual. Accordingly, applying a common law public benefit test to deny possessory rights risks extinguishing interests that were properly acquired.
Conclusion
Should possessory claims over municipal parklands succeed? In the absence of an express statutory exemption for municipal parkland, the answer, for now, is yes. Whether disallowing possessory claims would better serve the public interest is a matter of policy that “may well be an issue worthy of further debate,” (Kosicki, 2023 ONCA 450, para 213) but it is one that belongs in the legislature.
This article was edited by Yandi Hu.