Imagine discovering that a portion of the backyard you’ve enjoyed for years—the very space where your children play and you host summer barbecues—technically belongs to the city. This isn’t just a hypothetical scenario. It was the reality for a Toronto family, leading to a legal battle that ultimately reached the Supreme Court of Canada.
In its landmark 2025 decision, Kosicki v. Toronto (City), the nation’s highest court settled a fundamental question at the heart of property law: can a private citizen claim ownership of public parkland through adverse possession, commonly known as “squatter’s rights”? The Court’s answer, in a narrow 5-4 split, surprised many and reaffirmed a crucial legal principle about the power of legislation over judge-made law.
The Backyard Battle: The Facts of Kosicki v. Toronto
In 2017, the appellant homeowners purchased a home in Toronto. Their property backed onto a laneway, which separated their lot from the sprawling Étienne Brûlé Park along the Humber River. For years, they cared for their fenced-in backyard as their own, paying property taxes on a lot size that included the entire enclosed area.
Several years later, they made a startling discovery: a trapezoid-shaped slice of their backyard was, in fact, owned by the City of Toronto. This “disputed land” was part of a larger tract expropriated in 1958 and conveyed to the City in 1971 to form part of the park system. Notably, a chain-link fence was erected sometime between 1958 and 1971, effectively incorporating the disputed land into the private residence’s backyard and cutting it off from public access for over 50 years.
When the homeowners’ offer to purchase the land was refused by the City (which cited a policy against selling off land from its “Green Space System”), they turned to the courts, seeking a declaration that they were the legal owners through possessory title.
What Is Adverse Possession (or “Squatter’s Rights”)?
Before diving into the court’s decision, it’s essential to understand the legal doctrine at the center of the dispute: adverse possession. This principle allows a person who is not the legal owner of a piece of land to gain legal title to it under specific conditions.
In Ontario, the law is governed by the Real Property Limitations Act. To successfully claim adverse possession, a person must demonstrate that their possession of the land, and that of previous occupants they can link their claim to, has been:
- Actual: They are physically using the land.
- Open and Notorious: Their possession is obvious, not hidden, such that the true owner would know about it if they paid reasonable attention.
- Adverse: They are possessing the land without the true owner’s permission.
- Exclusive: They are possessing the land to the exclusion of the true owner and the general public.
- Continuous: Their possession has been uninterrupted for a period of 10 years.
If these conditions are met for the 10-year period, the Real Property Limitations Act extinguishes the original owner’s title to the land. The City of Toronto conceded that the homeowners and their predecessors had met this traditional test. The fence had openly and exclusively enclosed the land for decades. The legal fight, therefore, wasn’t about whether the test was met, but whether the test should apply to public parkland at all.
Public Policy & Public Parkland Considered in Lower Courts
The case took a winding path to the Supreme Court.
The initial application judge found that while the homeowners met the test for adverse possession, allowing a private citizen to fence off and claim public land was against public policy. She worried it would set a “dangerous precedent” and dismissed their claim.
On appeal to the Court of Appeal, a majority of the Court agreed with the outcome but for a different reason. They created a new, refined common law test specifically for municipal land. They held that adverse possession claims against public land will fail unless the municipality has clearly waived its rights or acquiesced to the private use of the land. This established a “rebuttable presumption” that public parkland is shielded from such claims. A dissenting judge, however, argued that the courts were overstepping by creating a new test when the legislature had already written the rules in the Real Property Limitations Act.
The Supreme Court’s Landmark Ruling
At the Supreme Court of Canada, the majority ruled in favour of the homeowners, allowing their appeal and declaring them the rightful owners of the disputed land. Their reasoning was not based on public policy or fairness but on a strict interpretation of the law as written by the legislature.
The Statute is Supreme
The core of the majority’s decision is the principle of legislative supremacy. The Court emphasized that the Real Property Limitations Act is the governing law for adverse possession in Ontario. The legislature, through the Real Property Limitations Act, created a comprehensive set of rules.
A Closed List of Exceptions
The most critical piece of the puzzle was section 16 of the Real Property Limitations Act. This section explicitly lists the types of public land that are immune from adverse possession claims. The list includes waste or vacant Crown land, as well as public road allowances and highways.
The Court noted what was missing from this list: municipal parkland.
The majority applied a classic rule of statutory interpretation: expressio unius est exclusio alterius (“to express one thing is to exclude another”). By creating a specific, closed list of exemptions, the legislature was presumed to have intentionally omitted other types of land. If the legislature had wanted to protect municipal parks from adverse possession, it could have easily added them to section 16 when it was last amended. It chose not to.
A History of Legislative Choices
The Court further noted that the Ontario legislature has repeatedly considered the issue of adverse possession and public lands. In recent amendments to other laws, such as the Public Lands Act and the Provincial Parks and Conservation Reserves Act, immunity was granted to provincial parks, but again, no mention was made of municipal parks.
For the majority, this pattern of legislative action and inaction was a clear signal. The Court’s role is to interpret and apply the law as the legislature has written it, not to create new common law exceptions that contradict the legislative scheme. To create a judicial “public benefit test” would be to improperly rewrite the statute.
As a result, since municipal parkland was not on the exempt list, it was subject to the 10-year limitation period in the Real Property Limitations Act. Because the possession had been continuous for far more than 10 years, the City of Toronto’s title was extinguished decades ago.
The Dissent: Public Parkland Should Be Exempt From Adverse Possession
The decision was not unanimous. Four justices, in reasons written by Justice Kasirer, passionately dissented, arguing that the City should have won.
The dissent’s view was that the traditional justifications for adverse possession simply don’t make sense when applied to public parkland. Adverse possession is meant to punish lazy landowners and reward the productive use of land. But a municipality holding a park for the benefit of the entire community is not “lazy.” Furthermore, the public’s enjoyment of green space is an incredibly valuable “use” of land that shouldn’t be defeated by a private individual’s fence.
The dissent argued that the Real Property Limitations Act is not a “complete code” and that the common law can and should evolve alongside it. They saw the Court of Appeal’s “public benefit test” not as a radical invention but as a sensible refinement of the common law to reflect the unique nature of public lands. They believed it was unreasonable to expect a city to patrol every inch of its thousands of acres of parkland for encroachments.
Key Takeaways From Kosicki v. Toronto
The Kosicki decision is more than just a story about a backyard fence. It provides crucial clarity on several points of property law in Ontario.
Statutory Law Over Common Law
The ruling is a powerful reminder that where a clear and comprehensive statute exists, it governs. Courts cannot create common law rules, even for compelling public policy reasons, that contradict the plain language and structure of a legislative act.
Certainty in Property Law
The decision provides certainty for property owners. The rules for adverse possession are found in the Real Property Limitations Act, not in a vague, judge-made “public benefit test” that could be difficult to apply.
Protection of Matured Rights
The Court upheld a property right that had “matured” or “crystallized” decades ago when the 10-year clock ran out. It refused to retroactively apply a new common law test to defeat that long-established right.
A Crucial Caveat: The Land Titles Act
It is vital to understand that this decision applies to a historical claim. Most properties in Ontario are now registered under the Land Titles Act. Section 51 of that Act effectively prevents any new claims of adverse possession from starting against registered land. Therefore, the Kosicki case does not open the floodgates for new “squatter’s rights” claims on parkland or any other registered property. Its impact is limited to those rare claims that matured before the land was converted into the Land Titles system.
An Illuminating Decision on Historical Land Possession Claims
The Supreme Court’s decision in Kosicki affirms that, in the contest between a private citizen’s long-standing, open possession and a municipality’s title to parkland, the letter of the law, as written by the legislature, is paramount. While the thought of public parkland being lost to private ownership may be unsettling, the Court’s majority concluded that it is the legislature’s job, not the courts’, to change the rules. For one Toronto family, this meant their backyard was finally, and legally, their own. For property owners and municipalities across Ontario, it serves as a definitive statement on the enduring, though now limited, power of adverse possession.
Contact Baker & Company in Toronto for Experienced Legal Advice in Municipal Property Disputes
If you’re facing a boundary dispute, encroachment issue, or questions about adverse possession in Ontario, knowledgeable legal guidance is essential. The property litigation lawyers at Baker & Company can help you assess your rights, evaluate potential risks, and navigate the complex intersection of statutory and common law. Contact us online or call 416-777-0100 to schedule a confidential consultation and get clarity on your property dispute.
