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In a landmark ruling, the Supreme Court of Canada has addressed the contentious issue of adverse possession in the context of municipally owned parkland. The case ofKosicki v. Toronto (City)offers critical guidance on the scope of private claims against municipal parkland.
Background Facts
In 2017, the appellant owners bought a residential property in Toronto that backs onto a municipally owned laneway, which separates their property from a large public park. Years later, they discovered that part of their backyard (the "Disputed Land"), was actually owned by the municipality. This land, along with the laneway and park, had been expropriated by the Metropolitan Toronto and Region Conservation Authority in 1958 and conveyed to the municipality in 1971. A fence had been erected around the backyard sometime between those years, effectively enclosing the disputed land and restricting public access.
The appellant owners sought an order for adverse possession of the Disputed Land. The City of Toronto disputed the claim, asserting that the land was designated for public use and therefore immune from private acquisition through adverse possession. The lower courts sided with the City, and the matter was escalated to the Supreme Court.
Judicial History
At the Superior Court, the application judge acknowledged that the applicants had met the traditional test for adverse possession. However, M.J. Donohue J. concluded that private individuals should 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 land owners. The judge dismissed the application on public policy grounds, stating that the lands were for a "very high public interest",1and allowing this claim to succeed would set a dangerous precedent.2
The majority of the Court of Appeal upheld the dismissal, but for different reasons. The Court of Appeal applied a "public benefit" test, holding that lands designated for public use, such as municipal parkland, should be protected from adverse possession unless the municipality had waived its rights or acknowledged or acquiesced in the possession, neither of which had occurred in this case.3
The Majority Opinion of the Supreme Court of Canada
The majority, led by O'Bonsawin J. and joined by Wagner C.J. and Côté, Rowe, and Moreau JJ., allowed the appeal and ruled in favour of the appellants. The Court held that recognizing a novel common law immunity for municipal parkland would contradict the statutory scheme laid out in Ontario'sReal Property Limitations Act("RPLA").4The Court emphasized that the legislature had already considered which public lands should be exempt from adverse possession in s. 16 of the RPLA, and although new exceptions for additional categories of public land have been enacted in related statutes since the last amendments to the RPLA, they do not mention municipal parkland.5Thus, in this statutory context, recognizing a new common law exception would serve to retroactively deprive a claimant of acquired possessory title, and in turn, would defeat the legislature's intent.6
Importantly, the Court rejected the "public benefit test" proposed by the Ontario Court of Appeal, which would have required municipalities to explicitly consent to the possession or acquiesce to the private use of public lands. The majority reasoned that such a test would effectively nullify the doctrine of adverse possession by requiring permission—an inherent contradiction.7
The majority held that determining a possessory claim requires courts to ensure legislative intent is respected and apply common law principles in a manner consistent with the statutory scheme.8Recognizing a novel common law immunity for municipal parkland from matured possessory claims cannot be reconciled with the relevant statutory scheme and would defeat the legislature's intent.9
Dissent - Karakatsanis, Martin, Kasirer and Jamal JJ.
The dissent supported the view that the public benefit test at common law remains operative along side the RPLA, and that the common law can and does acknowledge the distinct nature of municipal public lands. The dissent warned that the majority's approach could lead to privatization of public assets and that the public interest is amplified in densely populated urban settings, where publicly accessible green space has great public value.
Key Takeaways
The Supreme Court's majority decision affirms that municipal parkland is not immune from adverse possession under Ontario law unless explicitly exempt by statute. This ruling reinforces the primacy of legislative intent and limits judicial expansion of common law doctrines that could undermine statutory schemes.
Footnotes
1 Kosicki v. City of Toronto,2022 ONSC 3473(CanLII) at para. 8.
2 Kosicki v. City of Toronto,2022 ONSC 3473(CanLII) at para 78.
3 Kosicki v. Toronto (City),2023 ONCA 450(CanLII) at paras. 47, 74.
4 Real Property Limitations Act,R.S.O. 1990, c. L.15;Kosicki v. Toronto (City),2025 SCC 28(CanLII) at para. 83.
5 Kosicki v. Toronto (City),2025 SCC 28(CanLII) at para. 3.
6 Kosicki v. Toronto (City),2025 SCC 28(CanLII) at para. 3.
7 Kosicki v. Toronto (City),2025 SCC 28(CanLII) at paras. 77-78.
8 Kosicki v. Toronto (City),2025 SCC 28(CanLII) at para. 22.
9 Kosicki v. Toronto (City),2025 SCC 28(CanLII) at paras. 3-4.
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