Kosicki v. Toronto (City):

Squatting Rights on Public Lands

By Puneet Shroff

The case of Kosicki v. Toronto (City), 2023 ONCA 450, raises important questions about the law of adverse possession of parkland and its implications for private landowners and municipalities. The central issue in this case is whether private landowners can gain title over municipal parkland through adverse possession. The Court of Appeal for Ontario addressed this question and provided significant insights into the legal principles governing adverse possession of public lands. This case has not only highlighted the judicial approach towards interpreting the Real Property Limitations Act (the “Act”) but also reframed the public benefit test, creating a rebuttable presumption rather than a complete bar to adverse possession of municipal parklands.

The Concept of Adverse Possession

Before we delve into the intricacies of the case, it's essential to grasp the concept of adverse possession. Adverse possession, also known as squatting rights, is a legal doctrine that grants ownership of a piece of land to a person who has possessed it without the actual owner's interference for a specific period. The Real Property Limitations Act in Ontario outlines the statutory requirements for adverse possession claims. However, when this doctrine is applied to public land, such as municipal parkland, it presents a unique challenge, leading to complex legal situations like the one in the Kosicki v. Toronto case.

Background and Facts

The appellants, homeowners residing near the Humber River in Toronto, sought to claim a strip of land adjacent to a municipal park, which had been used as part of their backyard since at least 1971. This disputed land was originally expropriated in 1958 and had been in the possession of the City of Toronto, the registered owner. Despite the appellants maintaining the land and paying property taxes on it, which were accepted by the City until 2020, their attempt to purchase the land was refused based on the City's policy discouraging the sale of green space. Consequently, the appellants brought a claim for adverse possession, seeking a judicial declaration that the disputed land had become their property.

The Court's Decision

Majority Opinion

The majority of the Court of Appeal held that private landowners could not adversely possess the municipal parkland in question. This conclusion was primarily because the Real Property Limitations Act does not make specific reference to municipal lands as being exempt from adverse possession, leading to the interpretation that the Act does not prevent adverse possession of municipal parklands under the common law. The court relied on the common law “public benefit” test to determine the possibility of adverse possession of such municipal lands. However, in this case, the municipal lands could not be adversely possessed because the City did not consent to it.

Dissenting Opinion

The dissenting judge, however, disagreed with the majority, arguing that the statutory regime should be considered exhaustive. The dissent criticized the majority's reliance on the public benefit test as a judicial overreach, asserting that the silence of the Act regarding municipal lands does not prevent their adverse possession. This opinion highlights a critical tension in Canadian jurisprudence between statutory interpretation and the role of the common law.

Implications of the Decision

The Ontario Court of Appeal significantly updated the common law test for adverse possession claims against municipal lands, particularly focusing on parklands designated for public use. The court's ruling is multifaceted, with key elements including:

• Public Benefit Test: A new criterion was introduced requiring evidence that the municipality has either consented to, acknowledged, or acquiesced to the private use of the disputed lands for a claim of adverse possession to be successful. This test is divided into two main elements:
• The land must have been acquired by or dedicated to the municipality for the use or benefit of the public; and
• The municipality must not have waived its rights over the property or acknowledged or acquiesced to its use by a private landowner.
• Rejection of Automatic Immunity: The court dismissed the notion that municipal parklands are automatically immune to claims of adverse possession. However, it upheld the application judge's finding that adverse possession had not been established for the segment of parkland in question due to the absence of municipal consent, acknowledgment, or acquiescence to the private use of the land.
• Clarification on the Real Property Limitations Act: The court clarified that the Real Property Limitations Act exempts certain public lands, but not all public lands, from adverse possession claims. Instead, such claims should be resolved by turning to the common law "public benefit" test, making it more challenging for private landowners to succeed in claims of adverse possession of municipal lands, especially those with a designated public benefit like parklands.

Conclusion

Kosicki v. Toronto (City), 2023 ONCA 450, is a pivotal case that highlights the complexities of adverse possession claims against municipal lands. By reframing the public benefit test, the Ontario Court of Appeal has provided valuable guidance on how such claims should be approached, balancing the protection of public lands against the rights of private individuals. This decision is likely to influence future cases involving adverse possession of municipal lands and underscores the importance of both statutory law and common law in resolving property disputes.

Recently, the case has been selected for appeal to the Supreme Court of Canada. It will be intriguing to observe how Canada's highest court addresses the complexities raised by the Kosicki decision. We will provide further updates on the Supreme Court's decision once it is released.

Please feel free to contact me at pshroff@sorbaralaw.com for your real estate needs.