The Supreme Court of Canada’s ruling in Kosicki v. Toronto represents a pivotal development in Ontario property law, offering much-needed clarity on the application of adverse possession to municipal lands. The decision provides a practical precedent for homeowners asserting possessory title over public land.
Background: The Lower Courts and the Public Benefit Test
In 2017, the appellants, Pawel Kosicki and Megan Munro purchased a residential property in Toronto. A few years after purchasing the property, the applicants discovered that the municipality was the titleholder of a portion of their backyard. In 2021, the appellants tried to purchase the portion of their backyard, but the City refused. The appellants then filed a claim for adverse possession to acquire the land from the municipality.
The lower courts (Ontario Court of Appeal) had originally adopted a “public benefit test” saying that municipal lands designated for public use should be immune to adverse possession unless the municipality authorized or knew about the use. The rationale was that municipalities, unlike private landowners, manage lots portfolios of land with competing public priorities. If adverse possession were to be allowed too readily, municipalities might be unfairly punished for failing to monitor all parcels of their land. Moreover, applying possessory title to land held for public benefit may disadvantage the public, who may have been unaware of lands they could assert rights to.
The Supreme Court’s Decision
Ultimately, the Supreme Court of Canada (SCC) ruled against the “public benefit test” and held that Kosicki did have an ownership right to the land. The SCC noted that in Ontario, the Real Property Limitation Act (RPLA), provides for adverse possession after ten years of uninterrupted, exclusive, adverse use. The Court emphasized that the RPLA provides for adverse possession after ten years of continuous, exclusive, and adverse use, and that the statute does not expressly exempt municipal parklands. Also, the majority reasoned that treating municipalities differently and granting immunity from adverse possession would create an imbalance with the consistency and predictability of Ontario’s property law framework.
What did the majority hold?
The majority held that the RPLA does not provide an exemption for municipal parkland. The SCC ruled that the appellants met the requirements for adverse possession and were successful in their claim. The SCC rejected the previous attempt to create a public benefit test to protect municipal parkland that was upheld by the Appeal Court. The reasoning was that the majority wanted to uphold judicial supremacy and avoid social engineering by creating new immunities and changing the legislature's intent.
What did the dissent find?
The dissent argued in favour of the public benefit test, citing the common law's longstanding rule that land used for public use is immune from adverse possession claims. The dissent also emphasized the significant public interest in preserving green spaces, particularly in densely populated urban areas. The dissent warned that granting adverse possession claims could lead to the privatization of many public assets in the future.
Policy Implications: Municipal Vigilance Ahead
From a policy perspective, though, one might worry about the unintended consequences: what happens when municipalities fail to monitor small parcels of land and over time, private claims accumulate? Municipalities in response may now need to be more vigilant, check for fences, and possibly amend local policies or zoning to protect public land.
Citations:
Kosicki v. Toronto (City), 2025 SCC 28 (S.C.C.)
Real Property Limitations Act, R.S.O. 1990, c. L.15
Kosicki v. Toronto (City), 2023 ONCA 450
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.