In a recent split decision, the Supreme Court of Canada in Kosicki v. Toronto (City), 2025 SCC 28, has endorsed a strict interpretation of the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”) in determining that the common law principles of adverse possession apply to municipal parkland and do not fall within the limited statutory exemptions to adverse possession contained in section 16 of the RPLA which includes vacant Crown land as well as municipal or Provincial road allowances and public highways.
In this case, the property owners purchased a home in 2017 with a fenced rear yard which backed onto a municipal park in the City of Toronto. The property owners believed that the fenced portion of the property constituted the extent of their property for which they maintained and paid property taxes on based on this lot size.
In 2021, it was discovered that a portion of the fenced rear yard was, in fact, municipal parkland. The property owners subsequently requested to purchase this portion of property from the City of Toronto, which was refused. The property owners then sought possessory title to this portion of the property on the basis of adverse possession.
The Superior Court of Justice and Ontario Court of Appeal both found for the City of Toronto on the basis of a “public benefit” test finding that lands intended to be used for the public benefit should be insulated from claims of adverse possession, unless the municipality had consented to or knew about the use. The Supreme Court of Canada’s decision rejected this expanded “public benefit” test articulated by the lower courts and reasserts the strict interpretation of the traditional test contained in the RPLA.
This decision affirms that municipalities must be vigilant in monitoring and pre-emptively responding to any encroachment by private landowners on municipal parkland in order to ensure that such public resources are adequately protected from adverse possession claims.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.