Canada: Can An Adverse Possession Claim Be Used To Acquire Public Parkland?

Overview

In an important ruling on the issue of “public benefit”, the Ontario Court of Appeal in Kosicki v. Toronto (City), 2023 ONCA 450 (“Kosicki”) has held that a private landowner cannot gain title to municipal parkland through adverse possession unless the municipality has expressly waived its right over the property or acknowledged or acquiesced to the possession.

Facts

The appellants in Kosicki  owned a residential property near the Humber River in Toronto (the “Property”). The City of Toronto (the “City”) was the registered owner of a strip of land to the south of the Property (the “City Lands”), and adjacent to a park. The City Lands included a trapezoid-like parcel, which had been fenced and used exclusively by the owners of the Property since at least 1971 as part of their backyard (the “Disputed Land”).¹ The appellants maintained the Disputed Land and paid realty taxes on it until 2020.

In 2021, the appellants approached the City about purchasing the Disputed Land. The City refused, noting that the Disputed Land was designated under the City's Official Plan as part of its “Green Space System” (being those with significant natural heritage or recreational value), and that it was City policy to discourage the sale of such lands. The appellants brought a claim for adverse possession.

The Application Judge's Decision

In dismissing the Application, the judge acknowledged that the threshold for adverse possession had been met but concluded that publicly owned parkland was immune to such claims. The Court relied on the “public benefit” test, developed in cases such as Oro-Medonte (Township) v Warkentin,  2013 ONSC 1416, which held that land that was purchased by or dedicated to a municipality for the use or benefit of the public, could not be subject to claims for adverse possession.² In applying this test, the application judge noted that the Disputed Land had originally been required for a “very high public interest”, as it had historically been expropriated for a public purpose and eventually conveyed to the City as parkland.³

The Appeal Decision

The Court of Appeal upheld the application judge's decision but found that municipal lands were not immune to claims of adverse possession. The OCA concluded that “[w]here land is acquired by a municipality and zoned as parkland or a space to be accessible, such land should be treated as presumptively in use for the public benefit unless there is evidence that the municipality has acknowledged or acquiesced to its private use”.⁴ It reframed the common law “public benefit” test as follows:

The appellants argued that the application judge's decision deprived them of the protection provided for by Sections 4 and 15 of the Real Property Limitations Act (the “Act”). These provisions establish a 10-year limitation period for claims of adverse possession, after which the adverse possessor gains rights over the land and the true owner's title is extinguished. Section 16 of the Act contains exceptions to these provisions for certain categories of public land, including public highways, and waste or vacant Crown land, which cannot be adversely possessed. Municipal parkland is not included in these exceptions.

The Court of Appeal held that the Act was not a complete code to the law of adverse possession and “[t]he fact that certain categories of public lands are recognized as immune from adverse possession, while remaining silent on other categories, does not preclude the continuing development of the common law of adverse possession to public land”.⁵ The Court rejected the proposition that the Act ousts the common law with respect to adverse possession of municipal land other than land described in Section 16 of the Act and noted that because Section 16 “immunizes specific kinds of public land from adverse possession… it follows that for other kinds of public land, no such complete bar or immunity is in effect”.⁶

The Court concluded that where municipal lands are at issue, except for municipal lands referred to in Section 16 of the Act, such claims will be resolved by turning to the common law “public benefit” test.⁷ As the City in this case was unaware of the private landowner's possession of the Disputed Land, the Court held that adverse possession was not established.

The Dissenting Judge's Opinion

Justice Brown wrote a lengthy dissent, holding that the legislation was exhaustive and that its silence on municipal lands was indication that they were not immune to claims of adverse possession. He noted that the majority's resort to the common law essentially amended, rather than interpreted, the provisions of the Act and other relevant statutes, and failed to acknowledge that validly enacted legislation is paramount over the common law. Justice Brown commented that “[s]uch sweeping judicial intervention should set off judicial alarm bells that warn the court against straying far beyond the proper bounds of the exercise of its judicial power”.⁸

Key Takeaways

The Ontario Court of Appeal's decision in Kosicki  makes it increasingly difficult for private landowners to succeed in claims of adverse possession of municipal lands, particularly where such lands have a public benefit such as parkland. It also serves as an example of the ongoing tension between the legislation and common law that is prevalent throughout Canadian law, and it will be interesting to see how this tension is resolved, should the decision be appealed to the Supreme Court of Canada.

Footnotes

1. Kosicki v. Toronto (City), 2023 ONCA 450 at para 2.

2. Ibid  at para 28.

3. Ibid at para 11.

4. Ibid  at para 41.

5. Ibid  at para 66.

6. Ibid  at para 69.

7. Ibid  at para 74.

8. Ibid  at para 208.

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