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| Ray Mikkola |
The facts are reasonably straightforward. Briefly put, for several decades, certain city lands had been fenced off by Kosicki’s predecessor owner and used as part of his backyard (the “disputed lands”). The disputed lands formed part of a larger parcel of land that had previously been expropriated in 1958 by the Metropolitan Toronto and Region Conservation Authority (MTRCA), and which were transferred by the MTRCA to the city in 1969. A fence was erected by Kosicki’s predecessor in title sometime after 1958, but not later than 1971.
The disputed lands were later identified under the City’s Official Plan as parkland. The city was unaware that the disputed lands had been enclosed by the fence until 2021 when Kosicki inquired about purchasing the disputed lands from the city. The city refused, citing its long-standing policy not to convey parkland. In response, Kosicki brought an application for a declaration that Kosicki had become the owner of the disputed lands by reason of adverse possession.
The judge at first instance held that although Kosicki satisfied the traditional test for adverse possession, the court must consider whether it’s even appropriate for the city’s property rights in the disputed lands to be extinguished when the city discovered only recently
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The public benefit test is a common law rule of reasonably recent origin. It is based on a recognition by the courts that the requirements to ground a successful adverse possession claim which apply between private landowners should not apply to municipalities who hold land for the benefit of the public. The application judge in Kosicki held that the second requirement of the public benefit test (requiring actual use by the public) had not been satisfied because the disputed lands had been fenced off for decades and were therefore not available for use by the public.
Nevertheless, the application judge held that Kosicki’s application should be dismissed on the basis that the parkland constituted public lands. In other words, notwithstanding that the usual requirements for adverse possession had been satisfied by Kosicki, that the actual use requirements under the public benefit test had not been satisfied, and that there was no statutory exemption applicable to municipally owned parkland, Kosicki nevertheless could not succeed in his claim for adverse possession.
Kosicki’s appeal was dismissed by the Court of Appeal, the majority holding that municipally owned land should presumptively be found to be held for the benefit of the public so that a claim for adverse possession of land which had been “purchased by or dedicated to the municipality for use or benefit of the public” could not succeed unless the municipality had waived its presumptive rights over the property, or acknowledged or acquiesced to its use by a private land owner. In effect, the Court of Appeal held that it was not necessary that the city demonstrate the disputed land was actually used specifically for a public benefit during the period prior to it being fenced off.
The Supreme Court of Canada may be expected to address the following issues in its decision:
1. Is the public benefit test good law? At the Supreme Court of Canada hearing, counsel for Kosicki argued that no such test is contemplated by the Real Property Limitation Act (RPLA) and that the RPLA contains no exceptions for public lands apart from highways (in respect of which no adverse possession is possible). The court will likely address the question of whether the RPLA in this regard already contains a complete code for properties exempt from adverse possession or whether there is room for courts, in effect, to add lands in addition to highways in respect of which adverse possession claims will be barred. This aspect of the Supreme Court of Canada’s decision may be broadly applicable to other areas of the law, particularly where the common law continues in the face of applicable and possibly over-riding statutory provisions.
2. What is the nature of the required waiver, acknowledgment or acquiescence to the adverse use of parkland by a private landowner? Could such acknowledgment, waiver or acquiescence be constructive, or must it be express? In this case, the fence was clearly shown on a plan of survey which had been prepared to describe the lands which the city acquired from the MTRCA. Was the depiction of the fence on the plan sufficient to constitute acquiescence or acknowledgment by the city of the fence to entitle Kosicki to succeed? By holding that a municipality may “either expressly or by acknowledging or acquiescing to a private landowner’s adverse possession of parkland”, the Court of Appeal left open the possibility that the requisite acknowledgment or acquiescence may be other than “express”.
3. In applying the public benefit test, the Court of Appeal specifically referenced lands which are owned by a municipality which are held in the public interest. Potentially, this will broaden the impact of the public benefit test beyond parkland, as presumably all land owned by a municipality has some nexus to a public interest. In any event, shouldn’t all lands owned by a municipality provide some benefit to the public? These issues (among others) were raised in the dissenting opinion.
While the Court of Appeal did not expressly hold that municipally owned parkland is immune from a claim of adverse possession, it seems practically impossible for a claim for adverse possession to succeed if the applicant must show an acknowledgment or acquiescence by the municipality. Presumably, such acknowledgment or acquiescence by the municipality will be easier to demonstrate if it can be shown constructively. Of course, it might be that actual or express acknowledgment or acquiescence by a municipality could disentitle a claim for adverse possession from succeeding if it amounts to consent or permission to the occupancy, since in the ordinary course such consent or permission would obviate the required degree of adversity to succeed on an adverse possession claim.
Ray Mikkola is a partner with the firm of Pallett Valo LLP.
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