The Supreme Court of Canada (SCC) has issued a landmark decision clarifying the application of adverse possession in the context of municipal parkland. In Kosicki v. Toronto (City), 2025 SCC 28, the SCC considered whether private landowners may acquire possessory title over land held by a municipality for public use, and how the common law doctrine of adverse possession interacts with Ontario’s Real Property Limitations Act (RPLA).
In 2017, the homeowners purchased a residential property in Toronto with a backyard abutting municipal lands, including a portion of Étienne Brûlé Park. A chain-link fence, in place since 1971, had long separated the disputed land from public access, and the homeowners had been paying property taxes based on the larger lot size, believing the land to be theirs. Upon discovering that the City was the registered owner of the land, the homeowners attempted to purchase it, but the City refused. In response, they applied to the Court for a declaration of possessory title through adverse possession.
To prove adverse possession, a claimant must demonstrate actual possession that is open, notorious, exclusive, adverse and continuous for at least ten years prior to conversion to the land titles system, together with an intention to exclude the registered owner and effective exclusion of that owner from the property. The Superior Court of Justice found that the homeowners met these statutory criteria, but dismissed the application on public policy grounds, cautioning that granting adverse possession over municipal parkland could set a problematic precedent. A majority of the Court of Appeal upheld this decision, introducing a rebuttable presumption at common law against adverse possession of land dedicated for public use, effectively requiring municipal consent for an applicant to succeed.
The SCC, in a narrow 5-4 decision, allowed the appeal. The majority, led by Chief Justice Wagner and Justices Côté, Rowe, O’Bonsawin and Moreau, emphasized that section 16 of the RPLA sets out specific exemptions from adverse possession, including Crown land, road allowances and public highways, but does not include municipal parkland. Creating a common law immunity for municipal parkland would conflict with that statutory scheme. The SCC clarified that requiring express municipal consent or acquiescence with full knowledge of the possession is not consistent with the principles of adverse possession under the RPLA and the common law, which govern extinguishment of title where the statutory criteria are met.
The dissent, authored by Justices Karakatsanis, Martin, Kasirer and Jamal, focused on the public interest in parkland. They argued that exclusive private use, even when facilitated by a long-standing fence, did not justify granting possessory title, emphasizing the social and economic value of maintaining public access. The dissent maintained that the common law protection for land set aside by municipalities for public use remains relevant and had not been displaced by the RPLA.
The SCC’s decision resolves the outstanding question of the extent to which the common law may supplement the RPLA – at least when it comes to municipal parkland. It confirms that adverse possession claims can succeed against municipal parks when the statutory requirements of the RPLA and common law elements are met. By leaving municipal parkland off the list of statutory exemptions, the legislature signaled that possessory claims remain possible under the statute. The ruling highlights the importance of active management of public lands if municipal title is to be protected. With most adverse possession claims in Ontario, the applicant will need evidence from several decades ago, before the lands were converted to the land titles system, meaning these cases will likely remain quite rare.
Should you have any questions about this decision or other municipal litigation matters, please reach out to one of the members of our team.