Claims for adverse possession'acquiring land from its titleholder through continuous, exclusive and actual possession over at least 10 years'rarely succeed between private landowners, and almost never succeed when public land is involved. In Kosicki v. Toronto1, a majority of the Supreme Court cracked open the window for successfully making out adverse possession of certain types of public land.
The majority decision confirms parties with adverse possession claims should all satisfy the same requirements, regardless of what type of land is the subject of the claim. The only types of land immune to such claims'at least in Ontario'will be those explicitly specified in legislation, like roadways. The Court's reasons also provide practical guidance for how courts discern legislative intent if a statutory regime provides for specific exceptions to common law rules.
What you need to know
- Public land is subject to adverse possession. In Ontario, some types of public land are shielded from adverse possession claims by legislation. In Kosicki, the Supreme Court of Canada clarified that the rest are subject to adverse possession in the same way they would be if the disputed land was privately owned.
- Silence speaks volumes. Sometimes, the legislature provides a list of specific exceptions to a general rule that it does not explicitly leave open-ended. The majority in Kosicki instructs that this should be interpreted as a closed list. Creating additional common law exceptions to that closed list is improper, because it disregards the legislature's decision to omit them.
- Text remains paramount. The majority judgment in Kosicki is the latest in a line of recent Supreme Court decisions emphasizing the role of text as the "interpretive anchor" to discern legislative intent.
- The Supreme Court continues a private law split. In recent private law cases, the Supreme Court has repeatedly found itself narrowly divided. Here the five-judge majority leaned on a stricter statutory interpretation anchored in text, while the dissent found more room for the common law to evolve even in the presence of a statute.
Background: the homeowners' claim for adverse possession of municipal parkland
The Kosickis' backyard and the park
In 2017, Pawel Kosicki and Megan Munro bought a house with a fenced-in backyard. The house backs onto a laneway owned by the City of Toronto, and behind that laneway is a municipal park. Unbeknownst to the homeowners, some of their backyard was part of a...
