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Statutory Interpretation - Legislative Evolution. 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 comments on 'legislative evolution' as a doctrine of statutory interpretation:(2) The Legislative Evolution of Section 16 of the RPLA Indicates a Pattern of Codification of Immunities
[42] Before turning to the broader statutory context and legislative purpose, I will address the City’s argument that the implied exclusion inference is not available here because the legislature was simply reflecting the common law’s treatment of specific categories, and there is no reason to believe all exempted lands would be listed (R.F., at para. 69). Contrary to the City’s assertion, a historical review of the legislative evolution of s. 16 of the RPLA provides a compelling basis to conclude that the legislature turned its mind to the common law and chose to integrate the aspects it deemed desirable into its scheme. In light of this pattern, I agree with the appellants that it is significant that the legislature has not sought to codify an exception to the application of the RPLA for municipal parkland.
[43] Reliance on the legislative evolution of a provision is accepted as an important tool of statutory interpretation (Sullivan, at § 23.02[2]), as prior enactments, including their common law origins, can help shed light on the intention of the legislature in repealing, amending, replacing or adding to a statute (Gravel v. City of St-Léonard, 1977 CanLII 9 (SCC), [1978] 1 S.C.R. 660, at p. 667; R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867, at para. 33; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 43). It is also well accepted that the maxim of implied exclusion takes on additional relevance when dealing with codification of the common law: “. . . a court may rely on implied exclusion reasoning to conclude that the part of the law not codified was meant to be excluded” (Sullivan, at § 17.02[5]; see McClurg v. Canada, 1990 CanLII 28 (SCC), [1990] 3 S.C.R. 1020). This is in keeping with the presumption that the legislature is presumed to know the existing law, including the common law (Sullivan, at § 8.02[1]).
[44] With respect to s. 16, as the City notes, the legislature enacted the exceptions slowly over a period of 20 years. In 1902, Ontario enacted The Statute Law Revision Act, 1902, S.O. 1902, c. 1, s. 19, which introduced the first statutory exception to the application of the RPLA to protect “waste lands of the Crown”. The provision was revisited in 1910 to extend the protection from possessory claims to vacant Crown lands (The Limitations Act, S.O. 1910, c. 34, s. 17). The provision was revisited for a third and final time in 1922 to extend the statutory protection from adverse possession to road allowances and public highways (The Limitations Act, 1922, S.O. 1922, c. 47, s. 2).
[45] I agree these enactments largely reflect the jurisprudence and common law rules of the time, but in legislating the exceptions to the acquisition of possessory title, the legislature also opted to modify, or in some instances reject, the common law.
[46] For example, the first exception added to the RPLA, which exempts Crown waste lands from its application, was introduced to address an incommensurable gap between a lower court decision and the Judicial Committee of the Privy Council (“JCPC”) (see generally Attorney General of Ontario v. Walker, 1974 CanLII 3 (SCC), [1975] 1 S.C.R. 78, at pp. 82-84). In R. v. McCormick (1859), 18 U.C.Q.B. 131, the Court of Queen’s Bench of Upper Canada considered the application of the Crown Suits Act, 1769 (U.K.), 9 Geo. 3, c. 16, commonly known as the Nullum Tempus Act, to a claim of adverse possession. The Crown Suits Act established a 60-year limitation period for Crown actions, with some exceptions (Walker, at p. 82). The court in McCormick held that the statute did not bar the Crown’s right of recovery to waste land, which was described as land not surveyed and laid out for occupation. However, in Attorney-General for New South Wales v. Love, [1898] A.C. 679 (P.C.), the JCPC came to the opposite conclusion and allowed the claim for adverse possession against the Crown. The legislature thus opted in the 1902 enactment to codify the holding in McCormick, contrary to the conclusion of the JCPC.
[47] The statutory protection from possessory claims was later extended to “vacant” Crown land, which does not appear to have any clear common law foundation, unlike the other exceptions in s. 16 of the RPLA. Although there is little consideration of this type of land in the jurisprudence, our Court noted in Walker that it may apply to property that is not waste land (pp. 84-85).
[48] The RPLA was further amended in 1922 to introduce statutory protections from possessory claims for both road allowances and public highways. Under the common law doctrine of dedication, illustrated by the maxim “once a highway always a highway”, a public highway receives protection from adverse possession (Household Realty Corp. Ltd. v. Hilltop Mobile Home Sales Ltd. (1982), 1982 CanLII 2257 (ON CA), 136 D.L.R. (3d) 481 (Ont. C.A.), at p. 489, citing I. M. Rogers, The Law of Canadian Municipal Corporations (2nd ed. (loose-leaf)), at p. 1096; see generally D. J. Manderscheid, “Dedication of Public Highways at Common Law” (1997), 37 M.P.L.R. (2d) 215). The 1922 legislative amendments expanded the categories of land benefitting from this protection, something not possible at common law, while preserving any possessory title validly acquired before 1922. While only highways received protection at common law, the amendment extended the protection to road allowances. Previously, a road allowance that had never been opened or used by the public for that purpose would not constitute a public highway (Gooderham v. The City of Toronto (1895), 1895 CanLII 38 (SCC), 25 S.C.R. 246, at p. 260). The doctrine of dedication requires actual acceptance by the public of the dedication, or the acceptance of a public authority exercising its statutory powers on behalf of the public (see Bailey v. City of Victoria (1919), 1920 CanLII 367 (SCC), 60 S.C.R. 38, at p. 53). Accordingly, an unopened road allowance, which by implication would never have been used by the public, could not have benefitted from protection against adverse possession at common law. Further, as the Court of Appeal for Ontario has recognized, the amendment allowed for the acquisition of possessory title prior to its coming into force (Di Cenzo Construction Co. Ltd. v. Glassco (1978), 1978 CanLII 1472 (ON CA), 21 O.R. (2d) 186 (C.A.); Household Realty, at pp. 489-90).
[49] As Thorson J.A. recognized in Household Realty, “if a mere codification of the common law had been the legislature’s intention, then the amendment would have simply provided that ss. 1 to 15 do not apply and shall be deemed never to have applied to highways” (p. 490). Rather, s. 16 of the RPLA provides that “nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922”.
[50] Given this legislative pattern of codifying common law rules in statute, but with modifications, it is significant that the legislature has not expressly legislated an immunity from adverse possession for municipal parkland. Moreover, I disagree with the City’s suggestion that the legislature’s silence is of little relevance because s. 16 of the RPLA has not been amended since 1922, or because of the difficult language of the statute, which reflects its historical origins (see R.F., at para. 43). While s. 16 itself has not been amended, a number of legislative enactments have impacted the operation and application of the RPLA, which I will consider below. In such a legislative context, I would not summarily dismiss the absence of an express exception for municipal parkland.
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