The Ontario Court of Appeal in Kosicki v. Toronto (City), 2023 ONCA 450 recently considered the relationship between the common law doctrine of adverse possession and its applicability to municipal parkland. The central question at stake in the dispute was the following: Can private landowners gain title over municipal parkland through adverse possession?
The majority of the court clarified the common law test applicable to adverse possession claims against municipal parkland. In particular, the court found that the common law gives rise to a rebuttable presumption that municipal parkland is unavailable for adverse possession, rather than a complete bar.
However, in his dissenting opinion, Justice Brown strongly disagreed with the majority's decision and analysis on the basis that his colleagues were in effect using their judicial role to create a new legal rule regarding adverse possession. The application of the common law was contrary to an existing statute scheme, which forms a comprehensive code of the principles of adverse possession. In his view, the majority's decision effectively exempted municipal parkland from the operation of adverse possession, notwithstanding the very narrow list of exempt lands set out in the relevant statute, the Real Property Limitations Act.
The appellants have sought leave to appeal this hotly contested matter to the Supreme Court of Canada. If leave is granted, it will be interesting to see how our nation's highest court deals with these issues.
Background
The appellants own a property near the Humber River in Toronto, located on the southeast corner of Lundy Avenue and Warren Crescent. There are 26 other residential properties extending to the east of the appellants' property.
The City of Toronto is the registered owner of a trapezoid-shaped parcel of land that is located behind the appellants' single detached home, which had been fenced and used exclusively by the appellants' property since at least 1971 (the "Disputed Land"). Finally, the City also owns a similar rectangular parcel of land, behind a neighbouring single detached home, which it consented to transfer to the appellants' easterly neighbour.
The Disputed Lands are adjacent to Etienne Brulé Park, which runs alongside a part of the Humber River, and forms part of the City's Green Space System in the Official Plan. The Disputed Lands were fenced in by a previous owner of the appellants' property sometime between 1958 and 1971, such that it become enclosed within the backyard with no public access.
The Superior Court found that the appellant could have met threshold for adverse possession at common law, had the Disputed Lands been privately owned. The court instead found that, "a private individual must not be able to acquire title by encroaching on public lands and fencing off portions for their private use in the manner of two private property owners", in effect granting an immunity for municipal parkland.[1]
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