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Property - 'Settled Expectations'. 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 digs deep and considers the obscure property doctrine of 'settled expectations':[69] I emphasize that while there is some overlap between the rationales of limitations statutes and the doctrine of adverse possession, they remain distinct. In this case, the majority of the Court of Appeal declined to apply the RPLA on the basis that the rationales justifying the existence of the doctrine of adverse possession do not support its application to municipal parkland (paras. 16-19). It posited that “it is difficult to identify any rationale for adverse possession against municipal parkland” (para. 20 (emphasis in original)). The City has largely reasserted this argument before this Court (R.F., at paras. 93 et seq.).
[70] However, the City’s argument overlooks one of the most persuasive rationales of the doctrine, that is, the protection of settled expectations (Kaplinsky, Lavoie and Thomson, at p. 167; J. W. Singer, “The Reliance Interest in Property” (1988), 40 Stan. L. Rev. 611; M. H. Lubetsky, “Adding Epicycles: The Inconsistent Use Test in Adverse Possession Law” (2009), 47 Osgoode Hall L.J. 497, at p. 532; S. E. Hamill, “Common Law Property Theory and Jurisprudence in Canada” (2015), 40 Queen’s L.J. 679, at p. 695). This justification is especially compelling where the possessory claim has arisen from a bona fide error. Professor Singer explains that as time passes, the adverse possessor’s interest in the land grows, bolstered by his legitimate expectations, while the true owner’s interest diminishes as a result of his acquiescence to the possessor’s use of the land (pp. 665-69).
[71] It bears mentioning that the traditional rationales argued by the City have been the subject of academic criticism as they relate to the adverse possession of any kind of land (see, e.g., Kaplinsky, Lavoie and Thomson, at pp. 165-67). However, given the statutory treatment of adverse possession and the legislature’s choice to preserve its ongoing relevance to matured claims, disagreement with the doctrine’s rationales is not a valid basis for denying the appellants’ claim. There may be good public policy reasons to ensure that Crown and public lands are not subject to possessory claims and, as noted, one jurisdiction has expressly protected all municipal lands by statute (see S. Petersson, “Something for Nothing: The Law of Adverse Possession in Alberta” (1992), 30 Alta. L. Rev. 1291, at p. 1314). Ontario has chosen to extend protection to certain public lands, but preserve matured claims. Whether the doctrine of adverse possession retains its utility in the current landscape is a policy question for the legislature (see Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, at para. 32, citing Sullivan, at § 6.01[3]), and one which it has continued to consider in recent statutory enactments that balance different interests and considerations.
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