Silence speaks louder than words: Supreme Court declines to add common law exemptions to the legislature’s list

Claims for adverse possession—acquiring land from its titleholder through continuous, exclusive and actual possession over at least 10 years—rarely succeed between private landowners, and almost never succeed when public land is involved. In Kosicki v. Toronto¹, a majority of the Supreme Court cracked open the window for successfully making out adverse possession of certain types of public land.

The majority decision confirms parties with adverse possession claims should all satisfy the same requirements, regardless of what type of land is the subject of the claim. The only types of land immune to such claims—at least in Ontario—will be those explicitly specified in legislation, like roadways. The Court’s reasons also provide practical guidance for how courts discern legislative intent if a statutory regime provides for specific exceptions to common law rules.

What you need to know

• Public land is subject to adverse possession. In Ontario, some types of public land are shielded from adverse possession claims by legislation. In Kosicki, the Supreme Court of Canada clarified that the rest are subject to adverse possession in the same way they would be if the disputed land was privately owned.
• Silence speaks volumes. Sometimes, the legislature provides a list of specific exceptions to a general rule that it does not explicitly leave open-ended. The majority in Kosicki instructs that this should be interpreted as a closed list. Creating additional common law exceptions to that closed list is improper, because it disregards the legislature’s decision to omit them.
• Text remains paramount. The majority judgment in Kosicki is the latest in a line of recent Supreme Court decisions emphasizing the role of text as the “interpretive anchor” to discern legislative intent.
• The Supreme Court continues a private law split. In recent private law cases, the Supreme Court has repeatedly found itself narrowly divided. Here the five-judge majority leaned on a stricter statutory interpretation anchored in text, while the dissent found more room for the common law to evolve even in the presence of a statute.

Background: the homeowners’ claim for adverse possession of municipal parkland

The Kosickis’ backyard and the park

In 2017, Pawel Kosicki and Megan Munro bought a house with a fenced-in backyard. The house backs onto a laneway owned by the City of Toronto, and behind that laneway is a municipal park. Unbeknownst to the homeowners, some of their backyard was part of a city-owned land parcel that includes the laneway and park and is registered in Toronto’s Green Space System. Prior owners had fenced it in sometime between 1958 and 1971. From that time, it had been treated as part of the residential property, including for the purpose of calculating property taxes.

When the homeowners learned of the City’s title, they asked about buying it. The City refused, citing its policy against selling lands registered in the Green Space System. The homeowners then brought a claim for adverse possession.

Adverse possession is a common law doctrine through which title to property can pass to someone who has occupied land openly, notoriously, exclusively and continuously for many years while intending to and effectively excluding the true owner. The facts of this case (a party not even knowing about their title defects until they seek to do something to their property) are typical.

In Ontario, the Real Property Limitations Act (RPLA) codifies different aspects of the common law of adverse possession. The RPLA and related statutes provide that certain categories of public land are immune to adverse possession claims. Section 16 of the RPLA specifically refers to waste or vacant Crown land, road allowances, and public highways as being shielded from otherwise valid possessory claims². Nowhere in the legislation are municipal parks explicitly protected.

The common law also continues to play a role in adverse possession cases. A central issue in the Kosicki case was whether public land not specifically immunized by legislation remains subject to adverse possession.

Lower courts deny the homeowners’ claim

The homeowners were twice unsuccessful in claiming adverse possession against the City. There was no dispute that they met the requirements of open, notorious, exclusive and continuous use. But the lower courts denied their claim on the basis that municipal parkland was protected by public interest considerations. These concerns defeated the homeowners’ claim.

The majority of the Court of Appeal took the opportunity to “reframe” the Public Benefit Test applied by lower courts to claims of adverse possession of public land. Justice Sossin, writing for the majority, held that adverse possession claims against municipal land held for the use or benefit of the public could only succeed if the municipality waived its rights over the property, or acquiesced to its use by a private landowner³. Justice Brown, writing in dissent, viewed his colleagues as creating new law that ignored the RPLA and conflicted with the governing statutory regime.

Supreme Court: municipal parkland is not protected from adverse possession

The Court split 5-4, disagreeing on whether the RPLA could oust the common law. The majority allowed the appeal and declared the homeowners the fee simple owners of the disputed land⁴. The majority held that the Court of Appeal erred by relying on a common law rule that conflicted with the governing statutory scheme, in breach of the principle of legislative sovereignty. It found that the Public Benefit Test that the Court of Appeal had relied on would effectively bar any claim for adverse possession over municipal parkland. It held that such immunity would be inconsistent with legislative intent because the statutory framework provides a closed list of categories of land immune to adverse possession. Municipal parkland was omitted from the list of statutory exemptions and, the majority reasoned, it is not open to the courts to expand it with common law immunity. That is a legislative role.

The dissent substantially endorsed the reasoning and conclusions of the Court of Appeal. It concluded that claims of adverse possession should be approached differently if they involve public land, including municipal parkland. It would have applied a rebuttable presumption that land intended for public use or benefit, like a park, was in fact used by the public and shielded from adverse possession. To rebut this presumption, the homeowners would have had to show that the City had acknowledged or acquiesced to their private use of the disputed land.

Comparing the majority and the dissent reflects two important differences, which led to different results.

First, they disagreed on when the common law started treating adverse possession claims differently depending on the nature of the land. For the majority, the Public Benefit Test emerged from case law that post-dated the codification of the adverse possession rule in the RPLA, therefore creating a “novel immunity from adverse possession for municipal parkland”⁵. In contrast, the dissent understood the Court of Appeal’s reframing of the test as merely synthesizing a longstanding common law presumption of public use that predated the relevant provisions of the RPLA.

Second, where the majority saw a closed list of statutory exemptions, the dissent saw a list that existed alongside the common law, which treats categories of public land differently. In reaching the conclusion that the legislature intended its codified list of exemptions to be exhaustive, the majority primarily relied on the maxim expressio unius est exclusio alterius (“to express one thing is to exclude another”) as well as the history of amendments to the RPLA and related statutes codifying specific exemptions. Both interpretive tools suggested that the legislature turned its mind to the possibility of exempting municipal parkland, but that it intentionally chose not to. The dissent did not draw that inference from the legislature’s silence. Rather, it saw nothing in the RPLA signaling an intent to oust what it considered to be a longstanding common law rule.

Implications

Kosicki provides practical guidance on the principles of statutory interpretation used to discern legislative intent. The majority’s analysis reaffirms the role of text as the “interpretive anchor” and breathes new life into expressio unius (which had previously been the subject of some caution by the Court), demonstrating a willingness to infer intentional omissions from the silence of the legislature. Its decision shows a strong commitment to legislative sovereignty and a cautious approach to reading common-law gaps into a thorough statutory framework.

From a practical standpoint, Kosicki decisively rejects the application of a modified adverse possession test that would account for the type of land at issue. The only question is whether or not the category of land is exempt by statute. While the narrow holding refers specifically to municipal parkland, on the majority’s reasoning, there appears to be no room for any type of land not named in the RPLA or related statutes to be immune to otherwise valid adverse possession claims in Ontario.