Until recently, municipal parkland across Ontario was long seen as immune from adverse possession or “squatter’s rights”. From large cities to rural hamlets, the edges of parks and trails are rarely monitored, and private encroachments are common – an owner may extend a backyard garden or mowed area, or erect a shed or storage pile which results in a minor encroachment. Municipalities have generally taken action on major encroachments, but they did not fear the permanent loss of parkland and felt secure that they held the power in deciding on what terms to permit encroachments.
That dynamic has changed this year. The Supreme Court of Canada’s decision in Kosicki v. Toronto (City) has ended the common law protections, confirming that parkland is fully subject to adverse possession claims. This article explains what the ruling changes, why it matters, and how municipalities may need to adapt their monitoring and encroachment practices going forward.
What is adverse possession and how does it apply in Ontario?
Adverse possession is essentially a limitation deadline for a dispossessed owner of lands within the registry system to re-establish possession or sue for it. In Ontario, that deadline is 10 years from the date of “dispossession”. The traditional doctrine comes from case law, but it was gradually codified in the Real Property Limitations Act (the “RPLA”) during the early 20th century. As part of the conversion of most Ontario land to the land titles system by 2010, the Land Titles Act prevents any new possessory rights from arising after that conversion, while protecting all claims of adverse possession that matured earlier.
Cases applying adverse possession rely on a long-established common law test that requires a claimant to meet three criteria over the required 10 years:
(a) Actual possession that is open, notorious, peaceful, adverse, exclusive, actual, and continuous, having regard to the nature of the disputed property;
This involves treating the property as an owner, without the true owner’s consent. Enclosure with a fence is a strong indicator but not strictly required.
(b) intention to exclude the true owner from possession; and
This is inferred where both claimant and owner mistakenly believe that the claimant owns the land, or where the claimant makes the mistake and innocently acts as an owner.
(c) actual exclusion of the true owner.
Where possession and intention are shown, this is sometimes inferred, and the owner generally needs to take some act to stop the limitation clock from running out.
The central issue on the Kosicki appeal was whether and how the law of adverse possession applies to municipal parkland that has been dedicated for public use or benefit.
What were the facts and the public benefit test leading the Kosicki decision?
The facts in this case were straightforward. The homeowners purchased a Toronto residential property in 2017. In 2021, the homeowners determined that a significant portion of their backyard was owned by the City of Toronto (“City”). These “disputed lands” back onto a City-owned laneway abutting a municipal park. The full area – including the disputed lands – had been expropriated by the Metropolitan Toronto and Region Conservation Authority in 1958 and conveyed to the City in 1971. At some point between those years, prior owners had erected a fence that prevented public access in the decades since. City personnel had overlooked the City’s title to the disputed lands, until the homeowners approached the City offering to purchase the lands (on which they had already been paying realty taxes). The City refused, in keeping with policies preserving parkland.
In the resulting litigation, the application judge and Court of Appeal held that adverse possession of public parkland would be a dangerous precedent to allow (echoed in the dissenting opinion at the Supreme Court). One stated basis was that it would be unfair to require municipalities to watch their borders as carefully as a private landowner, as that would burden staff and taxpayers in municipalities across Ontario with the task of monitoring boundaries on hundreds or thousands of acres of parkland. The Court of Appeal also drew on past decisions to affirm a “public benefit test” standing in the way: adverse possession claims would not succeed against municipal lands acquired for the use or benefit of the public, unless the municipality had done something to waive those rights (the “Public Benefit Test”). This analysis or instinct had appeared in several past Ontario decisions going back decades, including the Teis v. Ancaster decision formulating the modern adverse possession test.
How did the Supreme Court of Canada address the Public Benefit Test?
At the appeal to the Supreme Court, the City acknowledged that the homeowners satisfied the three-part adverse possession test but argued chiefly that the Public Benefit Test prevented adverse possession of the municipal parkland.
The majority rejected this argument and found for the homeowners for two related groups of reasons. The majority found that:
- The RPLA’s limited exceptions do not include municipal parkland. On the one hand, the RPLA relies on but does not define the concept of “dispossession”, so that the common law has a role developing a complex, multi-part adverse possession analysis to clarify that word. (On that score, the City was certainly correct that the common law goes beyond the statute wording.) By contrast, where the RPLA lists specific categories of land that are exempt from adverse possession – such as for road allowances or vacant Crown land – that does not invite common law expansion but reflects legislative choices to modify and select from the pre-existing case law.
- Legislative intent was to preserve all possessory title once acquired. Past decisions applying the Public Benefit Test have indicated that one rationale for adverse possession is to promote the productive use of land by active squatters over inattentive owners, which does not apply to the case of lands dedicated for public use. In response, the Supreme Court majority emphasized a different rationale: adverse possession is intended to protect land users’ settled expectations. Partly on that basis, the Land Titles Act expressly confirms the intent to preserve all mature claims for possessory title.
What are the implications for municipalities and park neighbours?
The Kosicki decision is an important update to the law of adverse possession and municipal powers more generally. The effect on municipal lands and practices is open for debate, but the decision certainly warrants revisiting municipalities’ approach to encroachments on public lands and includes:
Municipalities may need new strategies to monitor park boundaries
For one thing, the decision is a further reminder that while municipalities enjoy broad powers under the Municipal Act, 2001, they cannot count on special treatment under most other statutes. As a result, managing numerous and historic public assets can be a challenge. In 2023, the Superior Court decision in Lake v. Cambridge confirmed that the purchasers of land were not subject to that City’s past, lawful invalidation of their lot by Planning Act by-law, since the municipality had not monitored title records to confirm that the land registry office had kept the decades-old notice on title. Similarly, the Kosicki decision may require greater care or new approaches from municipalities when policing or permitting encroaching uses or structures. Municipalities have traditionally counted on the ability demand strict conditions for any continued encroachment, but some may need to revisit encroachment by-laws where certain encroaching parties have historic evidence of possession.
Historic encroachments may need closer review
Only time and future litigation will tell how many threats to park boundaries arise in practice. The Kosicki case involved the strongest and clearest marker of possession – a decades-old, fenced enclosure. An encroaching garden shed would similarly indicate total possession within its walls. By contrast, many encroachments on park boundaries will involve acts such as gardening, grass-cutting, storage, or lawn chair-sitting. As time passes, many of these indicators are becoming harder to trace to pre-conversion use in the early 2000s or earlier.
Each claim will turn on specific evidence
Finally, even with available evidence, each new claim will turn on its own facts. The existing adverse possession jurisprudence notes that the test for actual exclusion can be a high one and is tailored to the nature of the land in question. This includes (a) the appropriate and natural uses to which land can be put, and (b) the reasonable steps expected from that type of owner to safeguard its interest. In particular cases, municipalities will continue to fight and frequently win the argument that the reasonable use of parkland – as with development land or cottage properties – may not require constant attendance to every inch of the boundary. In many cases, periodic and low-intensity use may not be enough to show true exclusion of the municipality, where its plan for the relevant parkland is to leave a naturalized area or buffer alongside other park uses.
Conclusion
The Supreme Court’s clarification in Kosicki v. Toronto raises important practical considerations for municipalities, park-adjacent landowners, and developers. Proactive monitoring, updated encroachment policies, and early legal advice will be key to managing emerging claims.
For tailored advice on municipal land management, encroachments, or adverse possession claims, contact our Municipal, Planning & Land Development team.
