An interesting dirt law decision from north of the border in a case we’ve been following.
In Kosicki v. City of Toronto, No. 40908 (Sep. 19, 2025), the Supreme Court of Canada held that the usual common law rule of “no adverse possession against the government” didn’t govern, and permitted a private owner to do just that.
We can’t say we understand fully the decision as we have not been “called to the Bar” in Canada, but since our legal systems have a common legal ancestor, we can understand enough to get the story.
Here’s how the majority framed the issue:
[1] The issue in this appeal is whether the appellants, Pawel Kosicki and Megan Munro, can succeed in their claim for possessory title under the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”). Since 2017, the appellants have jointly owned a residential property in Toronto. Several years after purchasing the property, they learned that the respondent, the City of Toronto (“City”), is the title holder of a portion of their backyard, which is enclosed by a chain link fence.
[2] The City concedes that the appellants have satisfied the test for adverse possession. It is undisputed that the parcel of land at issue has been fenced off, openly and continuously, since at least 1971. However, the City argues that the claim cannot succeed at common law because the disputed parcel of land is designated in municipal plans as parkland for public use. The application judge concluded that the City had not established that the property was immune from adverse possession under the “public benefit test” articulated in certain other lower court decisions. However, she determined it was nonetheless inappropriate for the City’s title to be extinguished as “a matter of public policy” (2022 ONSC 3473, 32 M.P.L.R. (6th) 306, at paras. 76-78). The Court of Appeal upheld the decision, but reframed the public benefit test. It held that adverse possession claims will fail where the municipality has not waived its rights over the property, or acknowledged or acquiesced to its use.
Slip op. at 22.
The majority concluded that “the City’s title to the land was extinguished over four decades ago,” and that concluding now that the owner didn’t have title by adverse possession would undermine his property rights. Slip op. at 23.
The Supreme Court viewed the dispute as whether the statute governing adverse possession claims comprises the entire universe of adverse possession (which means that if the property owner satisfied the statutory elements — which here was conceded), then game over and public lands can be adversely possessed. The city, however, argued that the statute is also informed by the common law, which exempts publicly-owned land from adverse possession if that land is used for the use and benefit of the public.
The trial court and the court of appeals agreed with the city, holding that because the land was part of a municipal park, it is not subject to adverse possession.
The majority and dissenting opinions are well worth digging into, even for those of us not entirely sure we understand Canada law. A lot of dirt law goodness, including the history of Canada’s approach to adverse possession and the codification of the common law doctrine.
In the end, the court viewed possession as the most important principle, concluding that a matured claim for possessory title under the statute cannot be thwarted by a common law immunity.
Check it out.
For a view how one U.S. Court (Pennsylvania Supreme Court) addressed a similar situation take a look at this post.
Thanks to friend and colleague Shane Rayman for sending this one our way.
Kosicki v. City of Toronto, No. 40908 (Canada Sep. 19, 2025)