In a significant decision, the Supreme Court of Canada has ruled in favour of the appellants, Pawel Kosicki and Megan Munro, recognizing their claim of adverse possession over a portion of municipal parkland in Toronto. The 5-4 ruling restores the application judge’s original finding and confirms that the traditional legal test for possessory title applies to municipal land under Ontario law.
The dispute arose in 2023 when Kosicki and Munro sought possessory title to a strip of land that had been enclosed within their backyard and maintained exclusively for over a decade. The application judge found that the homeowners had satisfied the established test for adverse possession and awarded title accordingly.
Court of Appeal: A New Legal Standard Introduced
On appeal, the Ontario Court of Appeal overturned that decision, holding that public land owned by a municipality could not be adversely possessed unless the municipality expressly waived its rights. The majority’s decision introduced a new legal standard that effectively immunized municipal land from possessory claims, despite the applicants meeting all elements of the traditional test. The dissenting judge noted that the ruling amounted to a judicial amendment of multiple statutes, including the Real Property Limitations Act and Land Titles Act.
Supreme Court: A Clarification of the Law
The Supreme Court granted leave to appeal—a rare step in property law matters—and ultimately rejected the Court of Appeal’s reasoning. The majority held that the statutory framework does not support a categorical exemption for municipal land and reaffirmed that courts must apply the established legal test for adverse possession. The decision clarifies that municipalities are subject to the same legal principles as other landowners unless expressly exempted by legislation. It marks a meaningful development in Canadian property law and confirms the continued applicability of possessory title principles to municipal land.
Fasken acted as lead counsel to Pawel Kosicki and Megan Munro from the initial application through to the successful appeal before the Supreme Court of Canada with a team comprised of Sarah Turney, Daniel Richer, and Jasmeen Kabuli, with support from Kirsten Sullivan.
Jurisdiction
- Ontario
