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Statutes and Regulations - Legislative Soverignty. 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 notes the priority of statutory law over the common law ('the principle of legislative sovereignty'):[72] Given my conclusions on the statutory interpretation of the RPLA, I am of the view that the courts below erred in exempting the appellants’ claim from the operation of its provisions by creating a novel immunity from adverse possession for municipal parkland. Contrary to the reasoning of the application judge, the question before this Court is not whether recognizing possessory title in this case is good public policy (para. 78). Rather, this Court must ask itself whether the manner in which the courts below exempted the present claim, on the basis of a judge-made rule, can be reconciled with the legislature’s treatment of immunities from adverse possession (see Sullivan, at § 17.02[1]; Basque, at paras. 40 and 45). Pursuant to the principle of legislative sovereignty, “validly enacted legislation is paramount over the common law”, and courts must give effect to legislative intent, “regardless of any reservations they might have concerning its wisdom” (Sullivan, at § 17.01.Pt1[1]).
[73] 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. As Professor Sullivan writes, when considering whether common law may be relied on to supplement legislation, “[r]esort to the common law is impermissible if it would interfere with the policies embodied in legislation or defeat its purpose” (§ 17.02[3]). Ontario has actively legislated with respect to possessory claims to title, including with respect to certain public lands. Commenting on the role of the courts in such a context, Professor Ziff has explained that, unlike other areas of private law, the area of property law has been extensively and substantively altered by statutory changes. As a result, when addressing questions of statutory interpretation, it is to be expected that courts’ “creative capacity is abridged” (B. Ziff, “Property Law and the Supreme Court: Of Gardens and Fields” (2017), 78 S.C.L.R. (2d) 357, at p. 365).
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