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Limitations - RPLA - Adverse Possession. Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (SCC, 2025) the Supreme Court of Canada allowed a homeowner's appeal, this from an Ontario Court of Appeal ruling that upheld the dismissal of an adverse possession application at the Superior Court, which "sought an order for possessory title to the disputed [SS: municipal] land":VI. Analysis
[20] The question raised in this appeal requires this Court to interpret the text of the relevant provisions of the RPLA in their entire context and in light of their purpose (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). In my view, while the common law continues to play a role in the law of adverse possession in Ontario, the majority of the Court of Appeal erred in exempting the present possessory claim from the provisions of the RPLA. It is clear from a contextual assessment of the provisions that the legislature did not intend to exempt municipal parkland from the RPLA’s operation and intended to preserve matured possessory claims.
[21] Below, I will first consider the interaction of the common law and the RPLA, which collectively govern claims of adverse possession in Ontario. I will then explain why, on a proper interpretation of the RPLA, its provisions govern the appellants’ possessory claim. Accordingly, at paras 30-84 the court thoughtfully walks through it's reasoning on these issues in light of the particular RPLA and other statutory provisions applicable, which do not exempt municipal parkland from the application of adverse possession doctrine.
. Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (SCC, 2025) the Supreme Court of Canada allowed a homeowner's appeal, this from an Ontario Court of Appeal ruling that upheld the dismissal of an adverse possession application at the Superior Court, which "sought an order for possessory title to the disputed land".
Here the court conducts a thoughtful historical review the law of adverse possession in Ontario, including the central role of the RPLA:A. The Law of Adverse Possession in Ontario
[22] In Ontario, the RPLA sets out rules governing claims for possessory title, also commonly known as adverse possession or squatters’ rights, including the rights of the prior possessor of land, who is typically the paper title holder and therefore referred to as the “true owner”, to recover land. By the operation of ss. 4, 5(1) and 15 of the RPLA, a true owner’s interest in land is extinguished in favour of the possessory title acquired by a trespasser when the latter establishes “dispossession”. A review of the RPLA and jurisprudence indicates that courts must resort to the common law to apply the clear but undefined terms of the relevant provisions. It is for this reason that I cannot accept the proposition of the dissenting judge of the Court of Appeal that “[n]o residual common law of adverse possession remains extant today” (para. 197). However, the law of adverse possession is also marked by a long history of statutory enactments, which have codified parts of the common law and modified others, including in recent years. Determining a possessory claim thus requires courts to ensure legislative intent is respected and apply common law principles in a manner consistent with the statutory scheme (Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 27).
[23] This Court has observed that the doctrine of adverse possession is a “long-standing common law device”, which serves to determine when dispossession has occurred (Mowatt, at para. 17). This view is shared in the literature where the doctrine has been described as having “a long pedigree in the common law” (E. Kaplinsky, M. Lavoie and J. Thomson, Ziff’s Principles of Property Law (8th ed. 2023), at p. 164). The doctrine remains “alive and well” in parts of Canada even after having been the subject of English statutory codification, which was largely reproduced in provincial legislation (ibid.; A. W. La Forest, Anger & Honsberger Law of Real Property (3rd ed. (loose-leaf)), at § 29:8; G. Mew, D. Rolph and D. Zacks, The Law of Limitations (4th ed. 2023), at pp. 504-5; Mowatt, at para. 17).
[24] The English statutory codification described above took place under the imperial Real Property Limitation Act, 1833 (U.K.), 3 & 4 Will. 4, c. 27, the provisions of which formed the basis of Ontario’s An Act to amend the Law respecting Real Property, and to render the proceedings for recovering possession thereof in certain cases, less difficult and expensive, S.U.C. 1834, 4 Will. 4, c. 1. Notably, the limitations statutes abolished some remedies for the recovery of land and technical actions available under the common law (La Forest, at §§ 29:9-29:10). For example, at common law, the true owner was still able to recover adversely possessed land if it could be done peaceably, even if the right to sue was lost (Kaplinsky, Lavoie and Thomson, at p. 165). This type of recovery was precluded by limitation statutes (ibid.). Sections 4, 5(1) and 15 of the RPLA closely replicate the provisions of the imperial statute, which provide that the right of recovery of an owner is barred following the prescribed statutory period, at the conclusion of which the owner’s title to the land is extinguished. Although the limitation period has varied in length since the introduction of these provisions, the relevant wording has remained unchanged (Bank of Montreal v. Iskenderov, 2023 ONCA 528, 168 O.R. (3d) 1, at para. 17).
[25] The Ontario legislation was amended in the early 20th century to specify exceptions to the application of the provisions described above for waste or vacant Crown land, road allowances, and public highways. However, the amendments expressly preserved rights, title, and interests that had been acquired as of June 1922 in respect of road allowances and highways. Together, these amendments form s. 16 of the RPLA.
[26] Substantial efforts to reform the law of limitations in Ontario were undertaken as early as 1969, which eventually culminated in the enactment of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (see, e.g., Ontario Law Reform Commission, Report on Limitation of Actions (1969)). However, the law of limitations governing real property was left undisturbed by this enactment and attempts at reform were abandoned (Mew, Rolph and Zacks, at p. 10). As I will discuss further below, subsequent legislative enactments in the area of property rights, including the LTA, PLA, and PPCRA, have nevertheless significantly impacted the operation of adverse possession by eliminating the ability to acquire possessory title under the RPLA, but preserving matured possessory claims.
[27] Where a claim for adverse possession is available, courts apply the relevant statutory provisions to determine if it is made out. The RPLA provides that the limitation period will start running at the time of “dispossession” (s. 5(1)), the elements of which are established in the jurisprudence. For a claim to succeed, the trespasser must establish: (1) actual possession of the land by the trespasser for the required statutory period; (2) an intention to exclude the true owner from their property; and (3) effective exclusion of the true owner from their property (Pflug v. Collins, 1951 CanLII 80 (ON SC), [1952] O.R. 519 (H.C.J.); Keefer v. Arillotta (1976), 1976 CanLII 571 (ON CA), 13 O.R. (2d) 680 (C.A.); Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.)). Actual possession is established where the act of possession is open and notorious, adverse, exclusive, peaceful, actual and continuous, all of which must be present for the claim to succeed (Mowatt, at para. 18; Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), citing Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.)).
[28] As this Court recognized in considering British Columbia’s equivalent legislation, “[w]hile courts have a role in defining what constitutes dispossession under British Columbia’s limitations legislation, legislative intent must be respected” (Mowatt, at para. 27). While the legislature may redefine the meaning of a common law term (Giffen (Re), 1998 CanLII 844 (SCC), [1998] 1 S.C.R. 91, at para. 26), it must signal its intention to do so; otherwise, the word will be understood to have retained its common law meaning (R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 S.C.R. 914, at pp. 929-30; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 20; R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 17.01.Pt2[1]).
[29] While the statute has preserved common law rules for defining dispossession, it is nevertheless clear from the history of legislative amendment in this area that courts must proceed with caution to respect legislative intent (see R. v. Basque, 2023 SCC 18, at paras. 40 and 45). In this respect, I note that the public benefit test considered by the courts below is of relatively recent vintage. Unlike in Basque, where the Court considered the impact of a statutory provision on an existing common law rule, in this case we must consider the impact of case law which post-dates the enactment of the relevant provisions of the RPLA. In such a case, the appropriate starting point is the statutory scheme. It is necessary for a court to closely examine the statute in order to determine whether legislative intent would be undermined by recourse to a novel common law rule (see Sullivan, at § 17.02[1]). . Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (SCC, 2025) the Supreme Court of Canada allowed a homeowner's appeal, this from an Ontario Court of Appeal ruling that upheld the dismissal of an adverse possession application at the Superior Court, which "sought an order for possessory title to the disputed land".
The court summarizes this case which turns on whether the originally municipal lands were "immune from adverse possession under the “public benefit test”", either under prior doctrine or under a new common law principle:I. Overview
[1] The issue in this appeal is whether the appellants, Pawel Kosicki and Megan Munro, can succeed in their claim for possessory title under the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”). Since 2017, the appellants have jointly owned a residential property in Toronto. Several years after purchasing the property, they learned that the respondent, the City of Toronto (“City”), is the title holder of a portion of their backyard, which is enclosed by a chain link fence.
[2] The City concedes that the appellants have satisfied the test for adverse possession. It is undisputed that the parcel of land at issue has been fenced off, openly and continuously, since at least 1971. However, the City argues that the claim cannot succeed at common law because the disputed parcel of land is designated in municipal plans as parkland for public use. The application judge concluded that the City had not established that the property was immune from adverse possession under the “public benefit test” articulated in certain other lower court decisions. However, she determined it was nonetheless inappropriate for the City’s title to be extinguished as “a matter of public policy” (2022 ONSC 3473, 32 M.P.L.R. (6th) 306, at paras. 76-78). The Court of Appeal upheld the decision, but reframed the public benefit test. It held that adverse possession claims will fail where the municipality has not waived its rights over the property, or acknowledged or acquiesced to its use.
[3] In my view, the RPLA, which extinguishes both the title and the right of the paper title holder to recover the land 10 years after dispossession, governs this dispute. The legislature has exempted certain public lands from the application of the RPLA for over a century. New exceptions for additional categories of public land have been enacted in related statutes since the last amendments to the RPLA. Although these new exceptions grant explicit protection to provincial parkland from the application of the RPLA, they do not mention municipal parkland. Moreover, despite prospectively abolishing the possibility of acquiring possessory title for land registered under the Land Titles Act, R.S.O. 1990, c. L.5 (“LTA”), the legislature has preserved matured possessory claims. The preservation of acquired possessory title is also consistent with the RPLA’s purpose as a statute of repose. 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.
[4] For the reasons that follow, I would allow the appeal. Under the applicable statutory rules, the City’s title to the land was extinguished over four decades ago. To accept the City’s argument would be to interfere with the appellants’ matured possessory claim and disregard the applicable statutory scheme.
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IV. Issue
[17] The sole issue before this Court is whether the appellants’ claim for possessory title, which otherwise satisfies the requirements of the RPLA, can be defeated because the disputed land forms part of a larger tract of land that eventually became a municipal park. The parties agree on the legal effect of ss. 4, 5(1) and 15 of the RPLA. There is no debate that, on a strict application of the statute, the appellants would be entitled to the disputed land. However, the parties disagree as to whether the land is nevertheless immune from the operation of the statute as a matter of common law. Resolving the issue therefore also requires that we consider whether, in light of the governing statutory scheme in Ontario, it is appropriate to recognize a new common law basis to exempt possessory claims in addition to those set out in statute.
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[84] On a proper interpretation of the RPLA, I conclude that ss. 4 and 15 apply to the present case, and there is no applicable exception, in either s. 16 or other statutes, to bar the appellants’ possessory claim. It is undisputed that the appellants have established that there has been open, notorious, peaceful, adverse, exclusive, actual and continuous possession for 10 years in accordance with ss. 4 and 5(1) of the RPLA; the City’s title to the disputed land was extinguished pursuant to s. 15 of that same statute. Importantly, pursuant to s. 44(1) of the LTA, the disputed land became subject to the appellants’ possessory title upon registration. The City’s title to the disputed land has long been extinguished; its title cannot be resurrected.
VIII. Disposition
[85] For these reasons, I would allow the appeal with costs throughout. The order of the Court of Appeal and the judgment of the Ontario Superior Court of Justice are set aside and the appellants’ application is allowed. It is declared that the appellants are the fee simple owners of the disputed land and the registrar for the Land Registry division of Toronto is directed to amend the parcel register for PIN 10526-0078 (LT) to include the disputed land.
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