Court of Appeal Clarifies Relationship Between Adverse Possession and Municipal Parkland

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]

The Court of Appeal's Reasoning

The Court of Appeal tempered the application judge's finding of a complete bar or immunity for public lands. Instead, the court clarified that although adverse possession is generally not available in the context of municipal land, there is a "public benefit" test to determine whether the municipal land at issue in a specific instance is immune from adverse possession:

Therefore, I would reframe the test for adverse possession of public land developed in cases such as Warkentin and Richard adopted by the application judge, as follows: adverse possession claims which are otherwise made out against municipal land 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 or landowners.[2]

The public benefit test provides that where land is acquired by a municipality and zoned as parkland, or a space to be accessible to the public, it should be treated as presumptively in use for public benefit and adverse possession will not be available. However, this presumption can be rebutted if there is evidence the municipality has acknowledged and acquiesced to its private use, giving rise to a potential claim in adverse possession. Evidence that the land was made unavailable to the public by the actions of private landowners is not sufficient to rebut the presumption of public benefit. [3]  

As an example of a case where the presumption was rebutted, the court noted that the City consented to an order in favour of the appellant's easterly neighbour, declaring the neighbour the successful adverse possessor of a similar parcel of municipal land. However, no such consent or acknowledgment by the City was made in relation to the Disputed Lands in this case.

In the majority's view, the presence of a provision in the Real Property Limitations Act ("RPLA") exempting specific categories of public land from adverse possession does not preclude application of the common law to other categories of public land. In other words, while section 16 of the RPLA exempts waste or vacant land, and land allocated for roads and public highways from adverse possession, the common law public benefit test may still exempt other types of public land not covered by the statute, such as parkland.

In the present case, the court found that adverse possession at common law was unavailable against the Disputed Lands.

The Dissenting Opinion

The dissenting opinion in this case was delivered by Justice Brown. He explained that a statutory codification and reformation of the common law with respect to adverse possession took place almost 200 years ago, as supported by the Supreme Court of Canada in Nelson (City) v. Mowatt, 2017 SCC 8 at para 17. The RPLA acts as a comprehensive code of the principles of adverse possession, and this codification is contrary to the majority's view that common law principles continue to govern.

In Justice Brown's view, the majority found it open to the court to create new legal rules regarding adverse possession, including exempting lands from the operation of adverse possession, notwithstanding the narrow list of exempt lands set out in section 16 of the RPLA. Notably, the legislature did not immunize municipal lands, including parkland, and that was a policy choice open to the legislature to make.[4]

In addition to the substantive issue of whether the RPLA constitutes a complete code, Justice Brown also raised concerns about the limits of judicial authority as exercised in this case. He used strong language including describing the majority's opinion as "sweeping judicial intervention [that] should set off judicial alarm bells that warn the court against straying far beyond the proper bounds of the exercise of its judicial power."[5] The following paragraph succinctly captures the dissenting concern:

Whether, as a matter of policy, the public interest would be better served by extending the protection of the RPLA s.16 to cover additional categories of municipally-owned lands may well be an issue worthy of further debate. But the proper forum for that debate is at the Legislature – the body that creates the powers and immunities of municipal corporation – not in the courts.[6]

Conclusion

As it currently stands, the Ontario Court of Appeal has confirmed that municipal parkland is presumed to be exempt from adverse possession on the basis of being used for public benefit. This presumption may be rebutted in very narrow circumstances – only where a municipality has actually acknowledged and acquiesced to the private use of the lands.

However, Justice Brown's strong dissenting opinion raises concerns about the use of judicial authority to create a new a "judicial rule", effectively supplanting the comprehensive code in the RPLA.

The appellant has sought leave to appeal to the Supreme Court of Canada. If leave is granted, this will be an interesting case to follow.