In a split decision Friday, the SCC granted a Toronto couple ownership of park land in their yard
The types of land exempted from an Ontario squatters’ rights law cannot be expanded via case law, the Supreme Court of Canada ruled Friday in a split decision. The ruling granted a Toronto couple rights to part of a municipal park fenced into their backyard since the 1970s.
Writing for the majority, Justice Michelle O’Bonsawin said the couple’s dispute with the City of Toronto over the land is governed by Ontario’s Real Property Limitation Act, which regulates adverse possession or squatters’ rights in the province. Under the law, a property owner forfeits their land to a trespasser if the latter can establish 10 years of dispossession.
O’Bonsawin noted that in s. 16 of the RPLA, the Ontario legislature has exempted certain public lands from the law’s application for over a century, including vacant Crown land, road allowances, and public highways. She added that multiple statutes have added more categories of public land to the list of exemptions over the years.
“Although these new exceptions grant explicit protection to provincial parkland from the application of the RPLA, they do not mention municipal parkland,” the justice wrote.
“In this statutory context, to recognize a new common law exception in addition to the exceptions the legislature has set out in s. 16, which would serve to retroactively deprive a claimant of acquired possessory title, would defeat the legislature’s intent,” she added.
Pawel Kosicki and Megan Munro bought their residential property in Toronto in 2017. The property includes a fenced-in backyard and a trapezoid-shaped parcel that was part of Étienne Brûlé Park and owned by the City of Toronto. The fence was built sometime between 1958 and 1971.
Believing that they owned the entire backyard, the couple paid property taxes calculated based on lot size, including the parcel of land owned by the city. The couple also maintained the yard and used it as a play area for their children.
In 2021, after discovering that the parcel of land was registered as municipal land, the couple asked the city if they could buy it. The city refused, reasoning that the parcel could be used to expand an existing access point to the park and install more signage. The couple asked the Ontario Superior Court of Justice for possessory title to the land.
The court determined that the couple met all the legal criteria for adverse possession but rejected their request as a matter of public policy. It stated that individuals should not be able to gain ownership of land by fencing off public property and making it unavailable for public use.
The couple appealed to the Ontario Court of Appeal, but the appellate court rejected their request in a split decision. Applying a public benefit test, the appellate court majority found that lands meant to be used for public benefit – like parkland – should be protected from adverse possession by private owners even if the public was not actually using them, unless a municipality had consented to or knew about the private owners’ use.
The SCC majority disagreed with the lower courts. O’Bonsawin noted that there is no debate that a “strict application” of the RPLA to the dispute would result in the couple gaining ownership of the land in their backyard. However, the parties disagreed on whether the land is exempt from the RPLA based on case law.
O’Bonsawin wrote that the RPLA applies to the disputed land, noting that the statute’s “closed” list of public land categories exempt from its application does not include municipal parkland.
The City of Toronto and the OCA had argued that applying a common law public benefit test to the disputed land would not undermine the intent of the RPLA, since the test functions as a rebuttable presumption – rather than immunity – that such land is not available for adverse possession.
However, the SCC majority disagreed, stating that the consequences of the OCA applying the public benefit test are “not appreciably different from an immunity.”
“Under the test elaborated by the majority of the Court of Appeal, a possessory claim would only succeed if the municipality explicitly consented to the possession,” O’Bonsawin wrote.
“Such a test is irreconcilable with the general principles of adverse possession and effectively ousts the legislation’s operation,” the justice said. “Requiring clear knowledge and an agreement on the part of the municipality not to disrupt the appellants’ possession in effect requires that they have permission to adversely possess, and yet one cannot adversely possess with permission.”
The justice added that the public benefit test, as used by the OCA, “would appear to effectively bar all claims for municipal parkland.”
The majority said that under the RPLA, the city’s title to the disputed land was extinguished more than four decades ago. The majority declared the couple the owners of the land.
Justices Nicholas Kasirer, Andromache Karakatsanis, Sheilah Martin, and Mahmud Jamal dissented, stating that they would have dismissed the couple’s appeal and that the common law public benefit test operates alongside the RPLA.
Under that public benefit test, the next step in the dispute is determining whether the City of Toronto “has actual or constructive knowledge of the private use of the land at issue and acquiesced thereto.”
Sarah Turney, a partner at Fasken Martineau DuMoulin LLP who represented the couple, told Canadian Lawyer in a statement that Friday’s decision “settles the law after years of uncertainty due in part to a series of Ontario court decisions that indicated that parkland ought to be treated differently from other types of land under the [RPLA].”
Turney noted that the public benefit test developed via those decisions “made it difficult, and in some cases impossible, to establish possessory title over municipal parkland.”
The lawyer added, “Beyond its implications for real estate and municipal lawyers, the decision provides important guidelines for any case where the common law meets a statutory scheme, as outlined in the following passage from the ruling: ‘That the legislature has not completely ousted the common law does not permit courts to supplement a statute in a [manner] that is inconsistent with legislative intent.”
In a statement, a spokesperson for the City of Toronto said its staff are evaluating the high court's decision and assessing its implications.
"The City’s parks provide residents and visitors with opportunities to engage in active recreation and enjoy nature, using these greenspaces to connect, play and build community," the spokesperson said. "Parks remain a vital part of this city."
Editor's Note: This story has been updated with a statement from the City of Toronto.
