COURT OF APPEAL FOR ONTARIO

CITATION: Kosicki v. Toronto (City), 2023 ONCA 450

DATE: 2023-06-23

DOCKET: C70861

MacPherson, Brown and Sossin JJ.A.

BETWEEN

Pawel Kosicki and Megan Munro

Applicants (Appellants)

and

City of Toronto, formerly the Corporation of the Borough of York

Respondent (Respondent)

Sarah J. Turney and Daniel T. Richer, for the appellants

Michele Brady and Alison Mintoff, for the respondent

Heard: February 15, 2023

On appeal from the judgment of Justice Meredith J. Donohue of the Superior Court of Justice dated June 13, 2022, with reasons reported at 2022 ONSC 3473.

Sossin J.A.:

OVERVIEW

[1] Can private landowners gain title over municipal parkland through adverse possession? This is the central question raised on this appeal. The application judge answered this question by finding that municipal parkland is immune to adverse possession. While I would not accept such an immunity arises at common law, I conclude the application judge was correct in finding that the municipal parkland at issue in this case was not available for adverse possession. For the reasons that follow, I would dismiss the appeal.

[2] The appellants own a property near the Humber River on the southeast corner of Lundy Avenue and Warren Crescent. There are 26 other residential properties east of the appellants’ property. The City of Toronto is the registered owner of a strip of land on the south side of these properties (the “City Lands”). For simplicity, the City Lands can be described as comprising three sections (as represented on the diagram below): i) a laneway that runs along the southern boundary of the properties and which has been used for over 40 years to access the rear-facing garages of the residential properties on Warren Crescent (Part 1 in the diagram below); ii) a trapezoid-like parcel of land behind the appellants’ single-family house, which has been fenced and used exclusively by the owners of the appellants’ property since at least 1971 (the “Disputed Land” identified as Parts 2 and 3 in the diagram below); and iii) a rectangular parcel of land, which the City consented to transfer to the appellants’ easterly neighbour (Part 4 in the diagram below).

[3] The City Lands are adjacent to Étienne Brûlé Park, a park that runs along a section of the Humber River. The City’s Official Plan designates this park and the Disputed Land as part of the City’s “Green Space System”. According to the City, the Green Space System is comprised of those lands that are large and have significant natural heritage or recreational value. In particular, within this system, the Disputed Land is designated as “Parks and Open Space Areas”, intended to provide public parks and recreational opportunities. It is official City policy to discourage the sale and disposal of lands in the Green Space System, such as the Disputed Land.

[4] Sometime between 1958 and 1971, a fence was erected by the then-owners of the appellants’ property around the Disputed Land, enclosing it within the backyard of the appellants’ house. The public has not been able to access the Disputed Land since at least this time.

[5] The appellants use the Disputed Land as a play area for their children and maintain it as part of their backyard. The appellants have paid realty taxes on the Disputed Land, and the City accepted those payments until 2020. The appellants approached the City about purchasing the disputed lands in 2021. The City, based on its policy, refused to sell, so the appellants brought a claim for adverse possession.

DECISION BELOW

[6] The application judge found the appellants’ claim would have met the threshold for adverse possession, as the Disputed Land was fenced in by the previous owners of the property since at least 1971, with no objection from the City. The previous owners of the appellants’ property, as well as the appellants, have maintained undisrupted and exclusive possession of the Disputed Land.

[7] While the facts at hand would have led to ownership arising from adverse possession if the dispute is between private parties, the application judge found that publicly owned land of this kind is immune to claims for adverse possession.

[8] The application judge reviewed the history of public ownership of the Disputed Land. In 1958, the City Lands, which include the Disputed Land, were expropriated by the Metropolitan Toronto and Region Conservation Authority (the “Conservation Authority”) as part of a larger stretch of land bordering the Humber River. The application judge found that the City Lands were “taken for public use” and that “‘expropriation’ by its very nature is an action for public purposes.”

[9] The application judge found that, in 1971, these City Lands were conveyed by the Conservation Authority to the City for a nominal sum of $2.00. One of the components of the City Lands, the public laneway, allowed access for the residents’ rear-facing garages. The application judge reviewed the record with respect to the Disputed Land after the conveyance and concluded, at para. 54:

[54] Until this application seeking an adverse possession claim, there was no evidence that the City was aware of the lands being public; nor that any city funds have been expended to maintain the disputed lands. It stands to reason that this was, in part, because the applicants’ predecessors had fenced off and excluded the land from the public.

[10] The application judge characterized the property owners’ extended fencing of the parkland as a deprivation of a reasonable use of the Disputed Land by the public. The application judge found that the Disputed Land could be put to use for the public benefit. The Disputed Land is part of a public park, and the City has plans to turn it into an access point to Étienne Brûlé park and the 29-kilometre Humber River Recreational Trail. She found that for over 50 years, “the property owners encroached on public lands with fencing to exclude public use. By their actions, they significantly narrowed the very access area to the public park.”

[11] The application judge concluded that public parkland is immune to claims for adverse possession. She found that “a private individual must not be able to acquire title by encroaching on public lands and fencing off portions for their private use in the manner of two private property owners”. The lands were originally required for a “very high public interest” – they were expropriated for a public purpose and conveyed to the City as parkland. If allowed, the application judge reasoned, this would set a “dangerous precedent”.

ANALYSIS

[12] The sole issue on this appeal is whether the application judge erred in finding that the appellants could not succeed in their claim for adverse possession over the Disputed Land. To resolve this issue, I must consider two questions: first, whether the application judge applied the proper adverse possession analysis to the facts of this case; second, whether the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”) affects this analysis, and specifically whether, as the appellants argue, the operation of the RPLA supersedes the common law and governs this dispute.

(1) The Common Law Scheme for Adverse Possession Claims

[13] In Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 17, Brown J. describes the common law basis for adverse possession as follows:

Adverse possession is a long-standing common law device by which the right of the prior possessor of land, typically the holder of registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. From as early as The Limitation Act, 1623 (Eng.), 21 Jas. 1, c. 16, the prior possessor’s right to recover possession was curtailed by limitation periods.

[14] Adverse possession at common law is established where the claimant had (i) actual, open, notorious, constant, continuous and peaceful possession of the subject land for the statutory period of 10 years; (ii) an intention to exclude the true owner from possession; and (iii) effective exclusion of the true owner for the entire 10-year statutory period: Billimoria v. Mistry, 2022 ONCA 276, 470 D.L.R. (4th) 406, at para. 27, citing Vivekanandan v. Terzian, 2020 ONCA 110, 443 D.L.R. (4th) 678, at para. 21.

[15] Canadian courts have treated adverse possession in the context of public lands at common law as distinct. In part, this is because the common law rationales for adverse possession between two private parties do not apply to publicly owned property.

[16] Scholars have posited three rationales at common law for adverse possession between private parties. First, the doctrine of adverse possession penalizes landowners who “sleep on their rights” and rewards the “working possessor” – the “reward-penalty” explanation. Second, based on similar reasoning, the doctrine encourages land to be put to its best, or most productive, use. Third, the doctrine encourages property owners to monitor their property and resolve any boundary, title, or other disputes, expeditiously, and in doing so, “protects the settled expectations of an adverse possessor who has acted on the assumption that her occupation will not be disturbed”: see Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), at pp. 141-45. See also Jeffrey E. Stake, “The Uneasy Case for Adverse Possession” (2001) 89 Geo L.J. 2419. None of these rationales have application against a municipal parkland.

[17] First, a municipal authority which allocates land-use according to statute cannot be said to “sleep on its rights” in relation to land designated as parkland, or for conservation or as an open space.

[18] Second, adverse possession cannot be said to result in better uses of land than those pursued by public authorities. As reflected in municipal zoning laws, there is an important public interest in the allocation of land for different uses, including land for transportation and industry, land for residential development and land for parkland, conservation or open spaces.

[19] Third, it is not realistic to expect a municipality to monitor the entirety of its land for signs of encroachment. As the application judge in this case observed, at para. 74, “The City is simply unable to patrol all its lands against such adverse possessors. The courts cannot demand the same vigilance of a private landowner to watch its borders of a public entity.” Further, where private parties object to the municipal zoning of particular land for particular uses, there are statutory dispute resolution processes which must be followed. Therefore, the rationale of encouraging monitoring and settling disputes also has little if any application in the context of adverse possession of municipal parkland.

[20] Indeed, it is difficult to identify any rationale for adverse possession against municipal parkland. However, save where adverse possession of public lands has been barred by statute, the common law has developed analytical approaches that leave open, at least in some circumstances, that adverse possession against such property remains possible.

[21] In his chapter on “Capacity to Hold and Deal with Interests in Land” in Anne Warner La Forest, Anger & Honsberger Law of Real Property, 3rd ed. (Toronto: Carswell, 2006), at §24:10, G. Thomas Johnson summarizes this principle as follows:

Municipalities, cities and towns have the power to acquire property by dedication, by devise, and by prescription. A town council which is authorized to expropriate land for specified purposes cannot exercise that power for different purposes. Where legislation has prescribed the mode of acquiring property, any other mode of acquisition is excluded. For example, the power to acquire land for a housing project does not permit a council to acquire shares in the corporation which owns the necessary land.

The right of ownership in real property held by a city or town for the common benefit or use of its inhabitants or of the Queen’s subjects in general (i.e., a highway) is of such a public character that it cannot, as a general rule, be lost by adverse possession over the prescriptive period. [Footnotes omitted; emphasis added.]

[22] In Hughes v. Fredericton (City), 1999 CanLII 9435 (NB QB), 216 N.B.R. (2d) 387, at para. 10, aff’d 2000 CanLII 10191 (NB CA), 225 N.B.R. (2d) 264 (C.A.), the court cited the emphasized passage above with approval. The court accepted, at para. 12, that at common law, municipal land zoned as parkland is held in trust for the public, and generally not available for adverse possession:

I find that the entire portion of the land acquired by the City of Fredericton was zoned for parkland and there was a clear intention that it was acquired for public use. It would be difficult, if not impossible, for a claimant to acquire such land by adverse possession. As soon as the land was zoned for parkland for public use, it was held in trust by the City for the public. [Emphasis added.]

The Development of the Public Benefit Test in the Common Law of Adverse Possession in Relation to Public Lands

[23] Faced with the fact-specific analysis of adverse possession in the context of municipal land, where it is generally not available for adverse possession but where no complete bar or immunity is applicable, courts have developed a “public benefit” test to determine whether the municipal land at issue is immune from adverse possession.

[24] In Hackett v. Colchester South (Twp.), 1928 CanLII 8 (SCC), [1928] S.C.R. 255, Duff J. stated in obiter remarks he was “much impressed” by the proposition that lands dedicated to public use and duly accepted by a municipality give rise to rights of enjoyment by the general public. He characterized these rights as “closely analogous to the rights of the public in respect of a public highway”, and the title of the municipality in such lands should not be capable of being nullified by claims of adverse possession: at p. 256.

[25] In light of Colchester, subsequent decisions rejected adverse possession claims against municipal lands, reasoning that it is inconsistent with the “high public interest purpose” to which those lands were or could be put: Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.), at para. 13, and Prescott & Russell (United Counties) v. Waugh (2004), 15 M.P.L.R. (4th) 314 (Ont. S.C.).

[26] In Prescott & Russell, Charbonneau J. found that municipal land that had been acquired for public forestry purposes could not be lost by adverse possession any more than the rest of the forest into which that land had been incorporated. Charbonneau J. held, at para. 21:

When a municipality acquires lands for forestry purposes a very high public interest purpose arises as can be seen by the meaning the legislature has ascribed to that expression. It makes eminent sense that, in order to protect this vital public interest and as a matter of public policy, lands held by a municipality in such circumstances cannot be the subject of a claim for adverse possession.

[27] In Woychyshyn, at para. 13, Ray J. dismissed a claim for possessory title to municipal parkland registered to the City of Ottawa, reasoning that there is a high public interest in maintaining such lands:

I have serious doubts that municipally owned land can be subject to a claim for possessory title. ... The Respondent’s evidence included a description of the complex procedures and processes required before municipal property can be disposed of. It suggests there is a high public interest in the preservation of municipal property. It should not be disposed of easily. A loss of property through adverse possession would be contrary to this high public interest.

[28] In Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, Howden J. found that a lakeshore promenade owned by the Township, but used and maintained in part by owners of lake-front lots, was immune from adverse possession. In reaching this conclusion, Howden J. summarized these earlier precedents and proposed the following test, at para. 119:

[L]ands held by a municipality other than as public road allowances which meet the following factors are immune from claims of neighbouring landowners based on prescriptive rights or adverse possession:

[(i)] the land was purchased by or dedicated to the municipality for the use or benefit of the public, or as here, for the use or benefit of an entire subdivision as well as the public at large; and

[(ii)] since its acquisition by the municipality, the land has been used by and of benefit to the public.

[29] Howden J. set out the rationale underlying the “public benefit” test. He stated that land acquired by a municipality and used for public purposes should be understood as being held in trust for the benefit of the public, and therefore title over such land cannot be lost or extinguished by reason of ordinary acts or omissions associated with adverse possession. Howden J. found legislative support for this approach in the elaborate processes designated by statute governing when and how municipalities can sell or convey municipal property. He concluded that, given such property is owned by municipality by way of quality title for the public benefit, fairness and justice require that no two people should be able to deprive the public of that benefit.

[30] The approach developed in Warkentin to the “public benefit” test subsequently was adopted in Richard v. Niagara Falls, 2018 ONSC 7389, 4 R.P.R. (6th) 238, aff’d on other grounds, 2019 ONCA 531. In that case, a claim for adverse possession of municipal land was not made out because the applicants failed to prove that their use of the land was inconsistent with the city’s intended use. Henderson J., after citing Warkentin, stated in obiter, at para. 27:

[I]n order to be immune from such a claim for adverse possession, the municipality must show that the land was purchased or dedicated for the use of the public, and that the land has been used by and of benefit to the public. [Emphasis added.]

[31] In Richard, Henderson J. incorporated the “public benefit” test into the third factor of the test for adverse possession (i.e., whether the city was effectively excluded from possession). I note that this was an incorrect placement of the “public benefit” test, which is instead a limitation to some claims for adverse possession for public lands. However, I summarize here the approach taken in Richard to clarify the proper characterization of the common law test. In Richard, the court focused on the de facto situation, which in that case was that the city intended to allow the public to make use of the trail in question. While the court referred to the de facto use by the city, as opposed to whether the city had formally designated the disputed land as a park, Henderson J.’s formulation of the test introduces the possibility that if a claimant can otherwise meet the threshold for adverse possession – and there is no evidence the disputed municipal land is actually in use for the public – an adverse possession claim could succeed. For the reasons elaborated below, I would not accept this characterization of the common law test.

[32] As the appellants point out, some adverse possession claims against municipalities involving parkland have succeeded. For example, in Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), this court dismissed an appeal from a decision granting adverse possession to private landowners over a strip of land and laneway in a public park. The appeal was decided on the common law test of mutual mistake since neither the private landowners nor the municipality had argued different rules applied to the common law of adverse possession in this factual setting. Nonetheless, Laskin J.A., in obiter comments, expressed “some discomfort” over applying the ordinary rules of adverse possession to municipal parkland, at pp. 228-229:

Most adverse possession claims involve disputes between private property owners. In this case, the Teises claim adverse possession of municipally owned land. I have some discomfort in upholding a possessory title to land that the Town would otherwise use to extend its public park for the benefit of its residents. Still, the Town did not suggest that municipally owned park land cannot be extinguished by adverse possession or even that different, more stringent requirements must be met when the land in dispute is owned by a municipality and would be used for a public park. This case was argued before the trial judge and in this court on the footing that the ordinary principles of adverse possession law applied. The application of those principles to the evidence and the trial judge’s findings of fact justify extinguishing the Town’s title to the ploughed strip and the laneway.

Whether, short of statutory reform, the protection against adverse possession afforded to municipal streets and highways should be extended to municipal land used for public parks, I leave to a case where the parties squarely raise the issue. [Emphasis added.]

[33] In my view, Teis stands for the proposition that it is open to a municipality to waive its presumptive title over parkland. While in Teis this was done through agreement that the “ordinary” rules of adverse possession applied, this waiver may also be accomplished by acknowledging a private landowner’s adverse possession and consenting to a transfer of title (as was done with the neighbour’s property in this case), or simply by a municipality acquiescing to adverse possession, where it has clear knowledge of its parkland property being adversely possessed by private landowners, and agreeing to take no steps to interfere with that adverse possession.

[34] Aside from those exceptional circumstances, the general rule that municipal parkland is not available for adverse possession has been given expression through the development of the “public benefit” test as set out above.

[35] The appellants argued before the application judge that the Disputed Land does not meet the public benefit standard because it clearly was not in public use over the relevant time period (as it had been fenced off by the previous owners of the property). The application judge accepted this position.

[36] On appeal, however, the appellants now argue that the “public benefit” test has not been endorsed by an appellate court and should be rejected entirely as inconsistent with the RPLA. For the reasons set out below, I do not accept this position.

[37] For its part, the City argues that the “public benefit” test is good law, but that the application judge was incorrect in finding its threshold was not met in this case. The City contends that the Disputed Land was expropriated for public use and private landowners should not be able to defeat that use by fencing off public land for private benefit. According to the City, as held by the application judge, municipal parkland of this kind should be treated as immune from adverse possession.

[38] I see the proper approach to adverse possession of municipal parkland lying between the two positions of the parties in this appeal. Under this approach, while municipal parkland is generally unavailable for adverse possession, it may become available exceptionally where the municipality has waived its presumptive rights over the property either expressly or by acknowledging or acquiescing to a private landowner’s adverse possession of parkland.

The Application of the Common Law of Adverse Possession to the Facts of this Case

[39] Applying the “public benefit” test to the record before her, the application judge concluded that, “The City was unable to provide evidence that the land was used by the public sometime in the 13 years after acquisition, before it was fenced out. I find it thereby fails the Public Benefit Test.”

[40] As elaborated above, the application judge nonetheless held that it would be inappropriate to permit a claim in adverse possession to succeed in circumstances where public lands are fenced off by private individuals, as this would set “a dangerous precedent.”

[41] In my view, the application judge treated as two separate considerations what should be seen as a single question to be addressed by the court in applying the public benefit analysis. Where land is acquired by a municipality and zoned as parkland or a space to be accessible to the public, such land should be treated as presumptively in use for the public benefit unless there is evidence the municipality has acknowledged and acquiesced to its private use. It is not enough to show that the land was rendered in fact unavailable to the public by the actions of private landowners.

[42] Therefore, in this case, it was not necessary that the City demonstrate the disputed land actually was used specifically for a public benefit during the period prior to it being fenced off (i.e., between 1958 and 1971). Rather, the sole question to be addressed was whether the appellants, in seeking title through adverse possession, could displace this presumption of public benefit to this municipally owned land zoned to be used as parkland – for example, by showing that, while the Disputed Land was acquired for a public benefit, the municipality, with full knowledge, acknowledged or acquiesced to its use for the benefit of the then-owners of the appellants’ property.

[43] On this point, it is helpful to consider the City’s aforementioned consent, in 2013, to an order in favour of the easterly neighbours of the appellants, declaring those neighbours the successful adverse possessor of a rectangular portion of the City Lands abutting the informal laneway. The application judge referred to this consent as undertaken in a “cavalier” manner. The City indicated in oral submissions that this consent may simply have been an error, based on the mistaken belief that this parcel had been zoned residential when the land fell under the Borough of York. No such consent or acknowledgment by the City, however, has been made in relation to the Disputed Lands at issue in this appeal. Nor can it be said, in light of the application judge’s factual findings, that the City acquiesced to the use of the Disputed Land by the appellants or previous owners of this property during the period prior to it being fenced in or afterwards. The evidence was to the contrary, as there is nothing in the record to indicate that the City was aware the fenced off Disputed Land was municipal parkland. By contrast, the appellants were aware that the fenced off land was municipal property and not part of their title, which is why they sought to purchase the property from the City.

[44] Generally, if a claimant acknowledges the right of the true owner, then possession will not be adverse. “Acknowledgment of title will thus stop the clock from running”: McClatchie v. Rideau Lakes (Township), 2015 ONCA 233, 53 R.P.R. (5th) 169, at para. 12, citing Teis, at p. 221, and see also 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241, at para. 73. In this case, however, the relevant time period was not when the appellants sought to purchase the Disputed Land, but rather when the previous owners first fenced it off.

[45] Another way of looking at the question is whether the municipal parkland was intended to be, and would have been used for the public benefit, but for interference of the private landowners. Where, as here, this is the case, the party bringing a claim for adverse possession against a municipality will not have met the test to show the land has not been used for a public benefit.

[46] I take this formulation to be consistent with the view expressed by the application judge in finding that, “the private landowner may not proceed to fence off public lands and exclude the public and succeed in a claim for adverse possession.” To the extent such a scenario would not meet the “public benefit” test as set out in Warkentin and Richard, the test was framed too narrowly in those cases.

[47] Therefore, I would reframe the test for adverse possession of public land developed in cases such as Warkentin and Richard adopted by the application judge, as follows: adverse possession claims which are otherwise made out against municipal land will not succeed where the land was purchased by or dedicated to the municipality for the use or benefit of the public, and the municipality has not waived its presumptive rights over the property, or acknowledged or acquiesced to its use by a private landowner or landowners.

[48] Based on this reframed test, I conclude the application judge came to the correct result by finding adverse possession at common law was unavailable against the municipal parkland in this case.

(2) The Statutory Scheme for Adverse Possession Claims

[49] The appellants argue that the application judge’s decision deprives them of the protection afforded by ss. 4 and 15 of the RPLA and therefore should be rejected.

[50] Section 4 of the RPLA reads:

4. No person shall make an entry or distress, or bring an action to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom the person making or bringing it claims, or if the right did not accrue to any person through whom that person claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing it.

[51] Courts have interpreted section 4 of the RPLA as clarifying that adverse possession, where established at common law, will give rise to a limitation period of 10 years, after which the party engaging in adverse possession will gain rights over the land.

[52] Section 15 of the RPLA reads:

15. At the determination of the period limited by this Act to any person for making an entry or distress or bringing any action, the right and title of such person to the land or rent, for the recovery whereof such entry, distress or action, respectively, might have been made or brought within such period, is extinguished.

[53] Therefore, where an adverse possessor of land maintains possession of the requisite character for a period of 10 years, section 4 of the RPLA bars the remedies of the paper title holder with respect to that land and section 15 of the RPLA extinguishes the “true owner’s” title to that land: see Teis, at para. 8.

[54] Section 16 of the RPLA contains an exception to the application of these provisions in favour of certain categories of public land, including public highways, and waste or vacant land of the Crown:

16. Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown, whether surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation, commission or other public body, but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922.

[55] It is common ground among the parties that the exception in s. 16 establishing immunity from adverse possession for certain kinds of public land does not extend to municipal parkland such as the Disputed Land. The application judge did not refer to this provision, or to the RPLA at all in her reasons. Although the RPLA was referred to in the materials in the proceeding below, the legislative scheme was not the focus of either party’s submissions.

[56] The appellants argue that the purposes of the RPLA must be kept in mind. While the statute does not contain any express statement of its purposes, the appellants rely on the well-accepted purposes of limitation statutes.

[57] The appellants rely on the Supreme Court elaboration of the three rationales for limitation statutes in M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at pp. 28-30: first, that statutes of limitations provide repose – that is, a point in time after which a potential defendant should free from accountability for “ancient obligations”; second, that parties should be relieved of potential liability based on stale evidence and relieved of concern over the preservation of evidence relevant to a stale claim; and third, that plaintiffs are expected to act diligently and not “sleep on their rights”.

[58] Similar to the analysis above with respect to the rationale for adverse possession having less, if any, application in the context of municipal parkland, so too the rationales for limitation periods in the context of adverse possession of municipal parkland are attenuated, if relevant at all. Municipal parkland is property held for the benefit of the public. This is not an ancient obligation but an ongoing one. Further, a significant evidentiary component in a case such as this will be municipal records, the retention of which is subject to statutory rules. Finally, a municipality which is unaware that private property owners have fenced off a portion of parkland cannot be said to be sleeping on their rights by not addressing the encroachment. The purposes of the RPLA are not advanced by permitting adverse possession of municipal parkland in these circumstances, nor are those purposes frustrated by applying a common law presumption against such adverse possession.

[59] The related question before this court is whether the exceptions in section 16 of the RPLA are exhaustive, that is, whether by referring to certain types of public land as unavailable for the limitation periods arising from adverse possession (i.e., waste or vacant land and land for roads and public highways), all other public land must be available in the same way as private land for adverse possession.

[60] Under this implied exclusion approach, had the legislature wished to treat municipal parkland different than private property, it could have done so, just as it did with respect to vacant and waste Crown land under s. 16. Having not done so, any public land not covered by s. 16 would fall into the general application of the limitation period in relation to adverse possession in ss. 3 and 4 of the RPLA. In other words, under this argument, s. 16 was intended to serve as a complete code with respect to public land exempt from availability for adverse possession.

[61] The appellants contend that the application judge’s decision, in effect, amends section 16 of the RPLA by adding a further exception from the application of the Act where public parkland is the subject of an adverse possession claim. As the appellants contend in their factum, “The RPLA does not provide that municipal parkland is immune from a claim in adverse possession. The Appellants submit that the findings of the Application Judge limit the application of the RPLA in direct contradiction to the grammatical and ordinary sense of its relevant provisions (i.e., ss. 4, 15 and 16 thereof), its scheme, its object and the intention of the Ontario legislature.”

[62] I do not read the application judge’s reasons in that way. Rather, the application judge found adverse possession of the Disputed Land inappropriate based on the common law analysis. While she framed this finding as “immunity” from adverse possession, I have explained above why and how I would reframe the common law analysis as giving rise to a rebuttable presumption that municipal parkland is unavailable for adverse possession rather than a complete bar. Therefore, the necessary question to which the application judge’s conclusion gives rise is not whether a further exception should be read into s. 16, but rather whether the RPLA precludes the development of the common law of adverse possession in relation to public land which is not covered under s. 16. As I explain below, in my view, the development of the common law in relation to public land is not precluded by the RPLA.

The RPLA Does Not Preclude the Development of the Common Law of Adverse Possession

[63] While s. 16 of the RPLA, first enacted in 1922, codified one aspect of this common law rule with respect to certain exemptions from the operation of ss. 4 and 15, in my view, nothing in the RPLA suggests it was intended to preclude the further development of the common law in public lands not of the kind categorized in that provision.

[64] The view that the RPLA was not intended as a complete code for the treatment of adverse possession of public lands is bolstered by considering the legislative history of the RPLA. The RPLA is an archaic statute, derived from 19th-century U.K. real property limitations statutes (i.e., the Real Property Limitation Act, 1833, 3 & 4 Will. 4, c. 27 (U.K.), as amended by the Real Property Limitations Act, 1874, 37 & 38 Vict., c. 7 (U.K.)): Graeme Mew, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at p. 376. While initially included in the law reform initiative that resulted in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, the provisions dealing with real property were ultimately left unchanged and now form the RPLA. In 1991, the Ministry of Attorney General published a report titled “Recommendations for a New Limitation Act: Report of the Limitation Act Consultation Group”, which, at p. 49, put forward the changes to the limitation periods that would become the Limitations Act, 2002. This consultation group recommended that Part I of the old Limitations Act should be left to be reformed by a group with more expertise. That further reform process has not yet occurred.

[65] In McConnell v. Huxtable, 2014 ONCA 86, 118 O.R. (3d) 561, at paras. 14-15, Rosenberg J.A., writing for the court, commented on the archaic nature of the RPLA. He considered and rejected the argument that because the RPLA referred only to express trusts, the legislature must be taken to have excluded constructive trusts, at para. 28:

The appellant argues that since the legislation only refers to express trusts, the legislature could not have intended the Act to apply to other types of trusts, particularly constructive trusts. I do not accept this submission, primarily because of the legislative history. The old Limitations Act dealt in Part II with trusts created by instrument and by legislation. When the new legislation repealed Part II (and Part III) of the old Limitations Act, it left no express provision for real property held by trustees. The legislature apparently believed that in the case of express trusts there was the need for some clarification. At this point, it is impossible to know why the legislature did not deal more broadly with all kinds of trust. One can only guess that given the consultation group’s lack of expertise and the constant, indeed, rapid evolution of equitable trusts, the legislature was of the view that the area was not ripe for codification. I see nothing in the Real Property Limitations Act that suggests that the legislature intended to exhaustively deal with trust cases involving land. To the contrary, the legislative history suggests that the legislature intended to leave the area largely as it was. Thus, if s. 4 can fairly bear the interpretation of applying to recovery of real property through a constructive trust then I see no reason to impose an artificial and narrow interpretation on the section’s very broad language. [Emphasis added.]

[66] In my view, a similar conclusion is appropriate with respect to s. 16. The fact that certain categories of public lands are recognized as immune from adverse possession, while remaining silent on other categories, does not preclude the continuing development of the common law of adverse possession in relation to public land.

[67] Additionally, no case was brought to our attention that adopts the expansive interpretation of the RPLA advanced by the appellants. To the contrary, this court has consistently held that the RPLA should be strictly construed to reflect the policy rationale underlying the limitation not “to promote the obtaining of possessory title” by adverse possession: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 574, quoting Harris v. Mudie (1882), 7 O.A.R. 414, at p. 421.

[68] Therefore, I would reject the proposition that the RPLA ousts the common law with respect to adverse possession in the context of municipal land other than land described in s. 16.

[69] While the RPLA should not be taken as a complete code with respect to the adverse possession of public land, s. 16 nonetheless must be given effect. Because s. 16 immunizes specific kinds of public land from adverse possession (i.e., vacant or waste Crown land or public roadways and highways), it follows that for other kinds of public land, no such complete bar or immunity is in effect.

[70] Should such full immunity from adverse possession be warranted, it falls to the legislature to consider the competing policy issues involved and enact changes to the RPLA, or otherwise. In Alberta, for example, s. 609 of the Municipal Government Act, R.S.A. 2000, c. M-26, provides that, “No person can acquire an estate or interest in land owned by a municipality by adverse or unauthorized possession, occupation, enjoyment or use of the land.” On December 15, 2022, Alberta abolished adverse possession altogether with the enactment of the Property Rights Statutes Amendment Act, 2022, S.A. 2022, c. 23. In British Columbia, a 2013 revision to the Limitation Act, S.B.C. 1975, c. 37, also abolished the acquisition of title through adverse possession entirely.

[71] In Ontario, the legislature significantly altered the real property landscape through the Land Titles Act, R.S.O. 1990, c. L.5 (“LTA”). As described below, by virtue of the LTA, it will be rare that disputes over adverse possession claims to municipal land arise.

[72] Section 51(1) of the LTA provides that, despite the provisions of the RPLA, no title, right, or interest in land that is registered under the LTA that is adverse to the title of the registered owner shall be acquired. Section 51(2) provides an exception to s. 51(1) if the adverse possession occurred prior to the first registration under the LTA, as is the situation in this case.

[73] The City Lands were converted to the Land Titles system on October 22, 2001, on a “qualified” basis, subject to pre-existing claims of possession as provided by s. 44(1) of the LTA. The parcel register for the City Lands states that first registration under the LTA is subject to “the rights of any person who would, but for the LTA, be entitled to the land or any part of it through length of adverse possession, prescription, misdescription or boundaries settled by convention”. The LTA, in other words, leaves open that the title over the City Lands is subject to adverse possession, but only in rare cases where the claims arose before registration under the Land Titles system, and as prescribed by the statute.

[74] As set out above, I conclude that where adverse possession against municipal land is at issue, other than municipal lands referred to in section 16 of the RPLA, such claims will be resolved by recourse to the common law, according to the “public benefit” test. Under this test, claims in adverse possession against municipal parkland at common law generally will not be available, unless it can be shown on the evidence that the municipality waived its presumptive rights, or acknowledged or acquiesced to such possession. In this case, no such exceptional circumstances are present, as the application judge found that the municipality was unaware of the private landowner’s possession of the Disputed Land.

DISPOSITION

[75] For these reasons, I would dismiss the appeal.

[76] The City is entitled to costs, which I would fix at $15,000 all inclusive.

“L. Sossin J.A.”

“I agree. J.C. MacPherson J.A.”

Brown J.A. (Dissenting):

Table of Contents

OVERVIEW.. 77

THE STRUCTURE OF THESE REASONS. 91

PART 1 – THE FAILURE TO ENGAGE WITH THE APPLICABLE STATUTORY REGIMES

A. Real Property Limitations Act 97

B. The effect of the City converting the Disputed Land to the Land Titles Act system 109

C. Statutory municipal immunities from suit 124

D. Statutory treatment of title to municipal property. 133

E. Summary. 138

PART 2 – THE CHAIN OF CASES RELIED ON BY THE APPLICATION JUDGE.

A. The seed planted: Teis v. Ancaster (Town) 140

B. The seed watered. 145

Prescott & Russell (United Counties) v. Waugh. 145

Household Realty Corp. v. Hilltop Mobile Home Sales Ltd. 149

Woychyshyn v. Ottawa (City) 158

Colchester South (Township) v. Hackett 161

Oro-Medonte (Township) v. Warkentin. 169

Richard v. Niagara Falls. 176

The present case. 178

C. Summary. 183

PART 3 – THE LIMITS ON JUDICIAL RULE-MAKING IN THE FACE OF STATUTES

A. The paramountcy of statutes. 185

B. The comprehensiveness of the RPLA. 187

C. Other statutes affect claims against municipal lands. 198

D. There is no legislative “gap” for the common law to fill 202

E. Conclusion. 212

DISPOSITION. 214

OVERVIEW

[77] Parks are good things. Every morning I look out my window and enjoy the sight of the sun rising over the tree canopy of one of Toronto’s oldest and largest parks. When at work, I can look out my window and see the residents of a green-space-starved, concretized, downtown Toronto core enjoying the small, construction-free patch of grass that remains of Osgoode Hall’s West lawn. Adequate parks are vital to maintaining one’s sanity and socializing with one’s neighbours in an urban sea of steel and glass. Parks give rise to pleasant thoughts and strong sentiments.

[78] That said, a case such as this which involves a claim by homeowners to adverse possession of a small patch of a municipally-owned greenspace that has formed their backyard for decades cannot be decided on the basis of sentiments about parkland. The appellants are entitled to have their case decided in accordance with the governing principles of law. Those principles are set out in statute, the Real Property Limitations Act, R.S.O. 1990, c. L.15 (the “RPLA”).

[79] The application judge did not apply those legal principles.

[80] Instead, she stepped outside the governing statutory regime to consider whether the City of Toronto (the “City”) enjoyed the benefit of a recent, judge-made exception to the statutory scheme, the so-called “Public Benefit Test” asserted and articulated by the court in Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, 30 R.P.R. (5th) 44. She concluded the City did not. So, the application judge went further. She created an even broader judge-made test that would immunize the Disputed Land from the appellants’ matured adverse possession claim. The application judge articulated her test as follows: a “private landowner may not proceed to fence off public lands and exclude the public and succeed in a claim for adverse possession.” Hereafter I shall refer to the rule created by the application judge as the “Judicial Public Lands Immunity” rule. In my view, by ignoring the RPLA and creating a new judge-made rule, the application judge erred in law. She should have granted the appellants the relief they sought; they were entitled to it under the existing law.

[81] My colleagues support the approach taken by the application judge, albeit they tweak her judge-made test a bit. I respectfully but very strongly disagree with my colleagues’ decision and their analysis. I therefore dissent.

[82] The Disputed Land is approximately 340m² in size: a postage stamp when viewed in the context of the overall size of the adjacent Étienne Brûlé Park, which winds along the Humber River from the Old Mill to just south of Dundas Street West. But the land makes up most of the backyard used by the appellants.

[83] Reasonable people can disagree as to whether, as a matter of public policy, municipal lands, including parkland, should be exposed to adverse possession claims regardless of the strength of the claim – here, there is no dispute the appellants have satisfied the statutory requirements to extinguish the City’s title to the Disputed Land – or the size of the lands affected. However, the appellants are entitled to have their claim decided not on the basis of what some judges might wish the law to be, but on the basis of what the law is.

[84] Statute – the RPLA – sets out the requirements for establishing adverse possession in Ontario. Applying the law as it now is, the appellants succeed on their claim. There is no dispute about this fact. Yet, the application judge and my colleagues have denied the appellants’ claim on the basis that courts are entitled to look beyond the law as it is and, instead, determine the claim based on the law as the courts think it ought to be. They have pushed the RPLA aside in order to create a legal rule, not found in the statute, about what type of land should be immune from claims for adverse possession. In my respectful view, their arrogation of such rule-making power constitutes legal error.

[85] As I understand my colleagues’ reasons, the key difference that separates our views is this: my colleagues take the view that common law principles continue to govern the law of adverse possession; by contrast, I read the history of that law as disclosing that a statutory codification and reformation of the law in the area took place almost two hundred years ago, a view that I think is supported by the decision of the Supreme Court of Canada in Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 17.

[86] As a result of those different views, my colleagues think it open to a judge to create new legal rules regarding adverse possession, including exempting lands from the operation of adverse possession, notwithstanding the narrow list of exempt lands set out in RPLA s. 16: waste or vacant Crown land, and road allowances and highways on Crown and municipal land. On my part, I think the RPLA acts as a comprehensive code of the principles of adverse possession subject, of course, to proper statutory interpretation. The courts certainly continue to possess the power to interpret and apply the provisions of the RPLA. Indeed, a large body of case law has developed around the interpretation of the statutory terms “possession” and “dispossession” that lie at the heart of the RPLA. However, I do not regard proper statutory interpretation as including a judicial power to amend the provisions of the RPLA, which I think is the “on-the-ground” result of the decisions of the application judge and my colleagues.Therein lies our fundamental difference. And, as I shall explain in what follows, therein lies the reason for my dissent.

[87] I would allow the appeal, set aside the judgment, and grant the appellants the relief sought in their notice of application.

[88] But first I must apologize to the reader for the length of this dissent. It turned out to be much longer than I had anticipated. In my defence, I think this appeal raises an issue of fundamental importance. Not whether the appellants are entitled to a declaration of possessory title over the Disputed Land – of course they are. Everyone acknowledges the appellants have met the statutory requirements for such a declaration. But while it is important that the appellants should receive their legal due, of greater importance is the way in which the courts in this case have denied the appellants their legal due. That judicial denial raises an issue that transcends the interests of the parties to this appeal.

[89] Courts have become very powerful in this country. Yet, there is little that holds judges accountable for the exercise of their powers. The other branches of government – the legislatures and the executives – are accountable to the people for their decisions through various mechanisms, including the review of their conduct by the courts. By contrast, no one supervises the courts and the judges who populate them. (Whether that is a good thing or bad thing, I leave for others to debate in other forums.)

[90] For the purposes of this case, the point I wish to make is this: for courts to play a lawful and legitimate role in a democracy, their lack of accountability mandates that judges exercise their powers with restraint and within proper bounds. In my view, and with all due respect to the application judge and my colleagues, that has not happened in this case. I wish to explain why I consider that to be so, and why I regard the dismissal of this appeal as wrong. Thus, the length of this dissent.

THE STRUCTURE OF THESE REASONS

[91] I do not propose to deal with the facts of this case in any depth: they are largely undisputed and well-summarized in my colleague’s reasons.

[92] In my respectful view, the decision of the application judge creating the Judicial Public Lands Immunity rule suffers from the following specific legal errors:

• A failure to engage in any interpretation of the controlling statute, the RPLA;
• A failure to consider the detailed statutory framework which governs municipal immunities from suit;
• A failure to consider the legal effect of the provisions of the Land Titles Act, R.S.O. 1990, c. L.5, dealing with the conversion of the Disputed Land into the Land Titles regime;
• A reliance on a series of earlier Superior Court of Justice decisions that suffer from similar flaws, and that also are tainted by the misreading of prior appellate decisions;
• A failure to understand or address the proper legal relationship between statutes and the common law in the circumstances; and
• A misconception of the power of judges to craft public policy.

These errors render the application judge’s decision the product of reversible judicial error.

[93] I have organized these errors into three groups and divided this dissent into three parts to deal with each group of errors:

• Part 1 – The matter in dispute in this appeal is subject to several statutory regimes, foremost amongst which is the RPLA. The application judge committed legal error by failing to engage with and interpret these statutes. It matters not how the parties framed the issues before her. It was obvious the appellants were seeking relief under the provincial limitations statute dealing with real property – the RPLA – and it was equally obvious that the City was inviting the court to step outside the controlling statutory regimes to grant it immunity from the appellants’ claim. Part 1 of these reasons will examine the statutory regimes the application judge incorrectly ignored;
• Part 2 – The application judge justified her creation of the Judicial Public Lands Immunity rule by relying on a chain of Superior Court of Justice cases that she understood supported the existence at common law of a rule that land acquired or used by a municipality for a public purpose or benefit was immune from claims for adverse possession. Part 2 of this dissent will explore that jurisprudence in some detail. My review of it concludes that the appellate jurisprudence upon which several Superior Court judges drew, including the application judge, does not support the broad immunity rule they seek to establish; and
• Part 3 – Finally, the application judge acted on the basis that she possessed a judicial power that could create a legal rule which would operate, in its practical effect, as an amendment to several statutes. In Part 3, I explain why she erred at law in arrogating such a power to herself.

[94] I commence with a consideration of the application judge’s failure to engage with and interpret the relevant statutes.

PART 1 – THE FAILURE TO ENGAGE WITH THE APPLICABLE STATUTORY REGIMES

[95] As I see the matter, the central issue raised by this appeal is the following: Does a judge possess the power to create a legal rule that would immunize a municipality from claims of adverse possession against public-use lands it owns? An answer to that question must start by understanding the legal environment in which the issue arises.

[96] Since fair weather is upon us, baseball can provide the metaphor to describe the field on which this appeal is played. This appeal’s “ballpark” is marked by four statutory boundaries. Two are found in statutes of general application concerning possessory claims against real property: the Real Property Limitations Act; and the Land Titles Act. The other two statutes apply specifically to municipalities, the beneficiaries of the Judicial Public Lands Immunity rule: the Municipal Act, 2001, S.O. 2001, c. 25 and the City of Toronto Act, 2006, S.O. 2006, c. 11, Sched. A.

A. Real Property Limitations Act

[97] Claims for adverse possession of real property and immunities therefrom are governed by the RPLA. It is the key statute. Surprisingly, the RPLA played little role in the application judge’s analysis, apart from a passing reference in para. 4 of her reasons to the statute’s general 10-year limitation period. In fairness to the application judge, the appellants did not rely on the RPLA in their notice of application, and the factums used on the application below were not filed on this appeal. From the application judge’s reasons, it appears the hearing below proceeded on the basis that the appellants had satisfied the requirements contained in the RPLA to establish possessory title against the Disputed Land, with the live issue involving whether some non-statutory immunity from suit was enjoyed by the City. Regardless of how the hearing below proceeded, it was obvious the City was seeking to expand the categories of land protected from adverse possession claims by RPLA s. 16. The application judge was obligated to engage with that statute; her failure to do so constituted, with respect, legal error.

[98] Sections 4, 5(1), and 15 of the RPLA set out the basic scheme for acquiring title by dispossession of a title holder to a parcel of land, or what is more colloquially called “adverse possession.” The relevant portions of those sections state:

4. No person shall make an entry … or bring an action to recover any land … but within ten years next after the time at which the right to make such entry … or to bring such action … first accrued to the person making or bringing it.

5. (1) Where the person claiming such land … has, in respect of the estate or interest claimed, been in possession … of the land … and has, while entitled thereto, been dispossessed, or has discontinued such possession … the right to make an entry or … bring an action to recover the land … shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession.…

6. At the determination of the period limited by this Act to any person for making an entry … or bringing any action, the right and title of such person to the land … for the recovery whereof such entry … or action, respectively, might have been made or brought within such period, is extinguished.

[99] Section 16 of the RPLA exempts or immunizes certain kinds of land from adverse possession claims stating:

16. Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown, whether surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation, commission or other public body, but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922.

[100] Before the application judge, there was no dispute the appellants had met the requirements of RPLA ss. 4 and 5(1), thereby making out their adverse possession claim. The City conceded the Disputed Land did not fall within the exemption afforded by RPLA s. 16. In those circumstances, by operation of RPLA s. 15 the City’s title to the Disputed Land had been extinguished, and the appellants therefore were entitled to the relief they were requesting from the court. Yet, the application judge ignored the operation of the provisions of the RPLA, the key statute governing the appellants’ claim.

[101] RPLA s. 16 limits its protection from adverse possession claims to one type of municipally-owned land: that reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in a municipal corporation. The application judge did not explain how, as a matter of statutory interpretation, she was free to ignore s. 16’s narrowly crafted protection of municipally-owned lands and create a more expansive protection of them. That failure was one instance of the legal error into which she fell.

[102] The City seems to argue, in part, that a court is free to stray outside of the RPLA when dealing with adverse possession claims against land because some language in the act is “archaic and difficult” and the provisions of the act largely have been ignored since its passage in 1922. While words such as “messuages” in the definition of “land” in RPLA s. 1 may strike some contemporary ears as archaic[^1], the language in RPLA ss. 4, 5(1), 15, and 16 reproduced above is plain and clear, not archaic or confusing.

[103] Nor have the real property statutory limitation provisions simply gathered dust on some forgotten shelf since 1922. The issue of how to deal with limitation periods for land formed part of the discussions about reforming Ontario’s limitation regime that took place from 1969 until 2002: Graeme Mew, The Law of Limitations, 3rd ed.(Toronto: LexisNexis, 2016), at § 1.13-1.19; McConnell v. Huxtable, 2014 ONCA 86, 370 D.L.R. (4th) 554, at paras. 14 and 25.

[104] The issue received treatment by the Legislature in late 2002. What is now the Real Property Limitations Act had formed Part I of the Limitations Act, R.S.O. 1990, c. L.15. When the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, was proclaimed in force on January 1, 2004, replacing the provisions of the former act dealing with personal actions, Part I of the former act dealing with real property claims was renamed the Real Property Limitations Act and continued in force: Justice Statute Law Amendment Act, 2002, S.O. 2002, c. 24, Sched. B, s. 26(2).

[105] Moreover, two years ago, the Legislature turned its mind to the issue of adverse possession claims against certain public lands. The omnibus Supporting People and Businesses Act, 2021, S.O. 2021, c. 34 amended the Public Lands Act, R.S.O. 1990, c. P.43, s. 17.1, and the Provincial Parks and Conservation Reserves Act, 2006, S.O. 2006, c. 12, s. 14.5, to establish immunities for Crown public land and provincial park land.[^2] Section 17.1(1) of the Public Lands Act, for example, now provides:

17.1 (1) Despite any other law, including the Real Property Limitations Act and any other Act or any common law rule, but subject to subsection (3), no person may acquire a right, title or interest in public lands, including lands described in subsection (2), by or through the use, possession or occupation of the lands or by prescription on or after the day the Supporting People and Businesses Act, 2021 receives Royal Assent.[^3]

[106] Significantly, the immunities from adverse possession created by these 2021 statutory amendments do not apply to claims that matured before the amendments came into force. Instead, the amendments recognize matured adverse possession claims but bar adverse possession claims against the identified public lands on a go-forward basis. In the Public Lands Act, s. 17.1 enacts that go-forward policy: s. 17.1(1) provides that no person may acquire a right, title or interest in public lands by the use or occupation of the lands “on or after the day the Supporting People and Businesses Act, 2021 receives Royal Assent”, but s. 17.1(3) then provides that “[t]his section does not apply if the right to bring an action on behalf of Her Majesty against a person for the recovery of lands was barred by the Real Property Limitations Act before the day the Supporting People and Businesses Act, 2021 received Royal Assent.” Similar provisions are found in the amended Provincial Parks and Conservation Reserves Act, 2006: ss. 14.5(1) and (2).

[107] The policy about matured adverse possession claims adopted by the Legislature in those 2021 amendments differs dramatically from that applied by the application judge in the present case. Here, there was no dispute that the appellants’ adverse possession claim had matured before the Disputed Land was converted to the Land Titles regime in 2001, thereby making the converted land subject to the appellants’ possessory title. Nevertheless, some 21 years later the application judge dismissed the appellants’ matured claim on the basis of her newly-created legal rule. With great respect, that is most unfair to the appellants. The 2021 amendments to the Public Lands Act and the Provincial Parks and Conservation Reserves Act, 2006 came into effect before the hearing of this application. However, the application judge’s reasons do not explain why her Judicial Public Lands Immunity rule imposes much more unfavourable treatment on matured adverse possession claims against municipal lands when compared to the recognition the 2021 statutory amendments accord to matured adverse possession claims against Crown public lands and provincial parkland.

[108] By crafting a Judicial Public Lands Immunity rule, the application judge effectively enacted a retroactive judicial amendment to RPLA s. 16 by adding a new category of land exempt from the Act’s adverse possession regime. As I will discuss later in these reasons, the application judge had no authority to make such an amendment.

B. The effect of the City converting the Disputed Land to the Land Titles Act system

[109] As the application judge noted, what my colleague’s reasons describe as the City Lands, which include the Disputed Land, were converted from the land registry system to the Land Titles system on October 22, 2001. The application judge held there was no dispute that the evidence supports exclusive use by the appellants (and their predecessors) of the Disputed Land for more than ten years before that conversion. However, the application judge did not consider the implications of that conversion for the immunity claimed by the City. It was legal error for her not to do so, for two main reasons.

The Judicial Public Lands Immunity rule duplicates much of the protection already enacted by the LTA

[110] First, the Land Titles Act (“LTA”) already provides extensive protection to City-owned lands, whether parkland or other types, from claims for adverse possession. This results from LTA s. 51(1) that prevents the acquisition of title by possession after lands are registered under the LTA. Section 51(1) states:

51. (1) Despite any provision of this Act, the Real Property Limitations Act or any other Act, no title to and no right or interest in land registered under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or be deemed to have been acquired heretofore by any length of possession or by prescription.

[111] As put in the Land Titles Conversion Qualified (LTCQ) to Land Titles Plus (LT Plus) Client Guide (“Conversion Guide”) published by the Ontario government[^4]: “Time stops running when lands are converted to the land titles system.” See also: Mills v. Star Quality Homes Ltd. (1978), 1978 CanLII 1389 (ON CA), 21 O.R. (2d) 39 (C.A.), at p. 43; Pickers v. Kierans (2014), 47 R.P.R. (5th) 297 (Ont. S.C.), at paras. 24-25; Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, 85 R.P.R. (5th) 24, at para. 18; Pepper v. Brooker, 2017 ONCA 532, 139 O.R. (3d) 67, at para. 42; Billimoria v. Mistry, 2022 ONCA 276, 470 D.L.R. (4th) 406, at para. 28.

[112] As a result, the City already enjoys a statutory immunity from adverse possession claims that had not matured before the City converted its lands to the Land Title system.

[113] The Judicial Public Lands Immunity rule therefore will duplicate the protection already afforded to the City’s public lands by LTA s. 51(1). Just how much municipal land will benefit from this double-protection is unknown; the City did not file any evidence on this point. This highlights one of the institutional dangers of judges attempting to act as a legislative committee. A judge has no independent power of inquiry. Consequently, in the absence of the City filing evidence on the point, one cannot tell whether the amount of City public land not protected by LTA s. 51(1) is large or small. It’s a mystery. Sound public policy cannot be made in mysterious conditions.

The Land Titles Act recognizes pre-conversion claims based on adverse possession

[114] Second, by failing to take into account the legal implications the LTA’s first registration scheme on the appellants’ claim, the application judge fell into legal error.

[115] Converting the registration of real property from the system under the Registry Act, R.S.O. 1990, c. R.20, to the Land Titles system has implications for claims of possessory title made against the converted land. In describing the effect of a “first registration” of land under the Land Titles regime, s. 44(1) of the LTA identifies the liabilities, rights, and interests to which all land registered under the Act is subject.[^5] One such liability is a possessory title another person has acquired to the land. Section 44(1)-3 states:

44 (1) All registered land, unless the contrary is expressed on the register, is subject to such of the following liabilities, rights and interests as for the time being may be subsisting in reference thereto, and such liabilities, rights and interests shall not be deemed to be encumbrances within the meaning of this Act:

3. Any title or lien that, by possession or improvements, the owner or person interested in any adjoining land has acquired to or in respect of the land. [Emphasis added.]

[116] However, LTA s. 44(3) goes on to provide that a parcel of land registered under the Act is not subject to s. 44(1)-3 if notice of the application for first registration was served upon an adjoining landowner and no objection to the first registration was filed with the land registrar. The Director of Titles determines any objections, subject to a right to appeal a question of law to the Divisional Court: see LTA, ss. 21, 41 and 42.

[117] Registration of land in the Land Titles system can occur in two different ways. First, a landowner can apply for registration under Part IV of the LTA. The applicant usually must give notice of its application to owners of adjoining land, who are entitled to object to the application.

[118] The second process is an administrative one. The City’s affiants did not describe the process the municipality used to convert the Disputed Land, as part of the City Lands, into the Land Titles system. However, the parcel register for the City Lands filed by one affiant discloses that the conversion took place not as a result of an application for first registration by the City, but by an administrative process used under the LTA as part of the automation of the province’s land registration records.

[119] The “estate/qualifier” section of the City Lands’ parcel register bears the notation: “[F]ee simple: LT conversion qualified”.

[120] According to the Conversion Guide, the province used a modified first registration process to accelerate the movement toward a single system of land registration under Land Titles. As the Conversion Guide explains, at p. 1:

[Since the administrative conversion] process does not involve owner applications, current surveys, service on adjoining or interested parties or a hearing process that would identify and resolve title disputes or adverse claims … all titles for properties converted under this administrative procedure are given qualifiers that differ from the normal land titles qualifiers. A parcel register issued pursuant to the administrative conversion will show LTCQ (Land Titles Conversion Qualified) in the – Estate/Qualifier – field. These qualified titles are subject to any pre-existing claims based on possession (paragraph 44(1) 3 of the Land Titles Act) and other qualifiers.

[121] The City Lands’ parcel register states that the land is subject on first registration to LTA s. 44(1), and specifically notes it is subject to any rights of adverse possession. Consequently, upon conversion into the Land Titles system, the registered City Lands remained subject to the appellants’ possessory title pursuant to LTA s. 44(1)-3.

[122] The application judge acknowledged there was no dispute the evidence supported exclusive use of the Disputed Land by the appellants (and their predecessors in title) for more than ten years before the property was converted to Land Titles. Yet, she failed to consider, as part of her analysis, the legal implications of that undisputed fact in light of LTA ss. 44(1)-3, 45, and 46 and the qualifications noted on the parcel register. On the evidence before her, by operation of the RPLA, the appellants had established title by possession to the Disputed Land and the City’s registration of that land under Land Titles was subject to the appellants’ title.

[123] By creating and applying her Judicial Public Lands Immunity rule, the application judge essentially amended the first registration provisions of the Land Titles Act by excluding from the operation of LTA s. 44(1)-3 title acquired by possession against public land owned by a municipality. The application judge’s reasons disclose no appreciation that her decision would have that effect. By failing to take into account the legal implications the LTA’s first registration scheme on the appellants’ claim, the application judge fell into legal error.

C. Statutory municipal immunities from suit

[124] Ontario’s municipal legislation does not recognize any municipal immunity from adverse possession claims against real property owned by a municipality.

[125] In Canada, municipalities are creatures of provincial statutes: R. v. Greenbaum, 1993 CanLII 166 (SCC), [1993] 1 S.C.R. 674, at para. 24. As re-affirmed two years ago by the Supreme Court of Canada in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, 462 D.L.R. (4th) 1, at para. 2:

Section 92(8) of the Constitution Act, 1867 assigns to provinces exclusive legislative authority regarding “Municipal Institutions in the Province”. Municipalities incorporated under this authority therefore hold delegated provincial powers; like school boards or other creatures of provincial statute, they do not have independent constitutional status[.]The province has “absolute and unfettered legal power to do with them as it wills” [Citations omitted.]

[126] Today, most municipalities are governed by the provisions of the Municipal Act, 2001, as amended, except for the City of Toronto, which is subject to the City of Toronto Act, 2006 (the “CTA”). Both acts were products of an extensive process to reform Ontario’s municipal legislation. While not identical, significant similarities exist between the general municipal legislation and the CTA.

[127] Provincial municipal legislation sets out the nature of a municipal corporation, its powers, purposes, and duties. As a corporation, the City of Toronto can sue and be sued: Legislation Act, 2006, S.O. 2006, c. 21, Sched. F. The CTA contains provisions that limit or eliminate the liability of the City from certain types of lawsuits. Perhaps the most well-known is the limitation regarding “slip and fall” cases. While the City is liable in damages for any negligence in maintaining in a state of repair a highway (sidewalk) over which it has jurisdiction, the CTA restricts the scope of the standard of care the City must meet and requires most claimants to give the City notice of a claim as a condition precedent to commencing an action: s. 42.[^6]

[128] Some provisions of the CTA go further by granting the City immunity from suit in certain circumstances. For example, s. 390 states:

390. No proceeding based on negligence in connection with the exercise or non-exercise of a discretionary power or the performance or non-performance of a discretionary function, if the action or inaction results from a policy decision of the City or a local board of the City made in a good faith exercise of the discretion, shall be commenced against,

(a) the City or a local board of the City;

(b) a member of city council or a member of a local board of the City; or

(c) an officer, employee or agent of the City or an officer, employee or agent of a local board of the City.[^7]

[129] Section 393 immunizes the City against proceedings based on nuisance in connection with the escape of water or sewage from sewage works or water works, but not “from liability arising from a cause of action that is created by a statute or from an obligation to pay compensation that is created by a statute.” (Emphasis added.)

[130] The key point is this: neither the CTA nor the Municipal Act, 2001 contains any provision that limits or immunizes municipalities from claims for adverse possession against real property they own.[^8]

[131] The application judge did not refer to either statute in her reasons, notwithstanding that her creation of the Judicial Public Lands Immunity rule essentially amends both acts by adding a new municipal immunity from suit.

[132] The application judge did refer to an obiter comment by this court in Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.) that stated, at p. 229: “Whether, short of statutory reform, the protection against adverse possession afforded to municipal streets and highways should be extended to municipal land used for public parks, I leave to a case where the parties squarely raise the issue.” This court made that reflection in 1997. Provincial municipal legislation was extensively reformed several years later. It is worth noting that notwithstanding the reflections of this court in Teis, and notwithstanding how some other provinces have immunized municipally-held property[^9], the Legislature did not include in the reformed municipal legislation an immunity from suit for adverse possession of municipal lands, including parkland; that was a policy choice open to the Legislature to make.

D. Statutory treatment of title to municipal property

[133] The application judge, at para. 11 of her reasons, quoted with approval a passage from the 2013 decision of the Superior Court of Justice in Oro-Medonte (Township) v. Warkentin, that described land owned and used by a municipality for public purposes as “held in trust for the benefit of the public and cannot be lost.” However, the CTA does not stipulate how the City should register title to the real property it owns. The City’s by-laws on real property[^10] and parks[^11] do not contain any provisions on how the City should hold title to parkland.

[134] In Norfolk v. Roberts (1913), 1913 CanLII 533 (ON CA), 28 O.L.R. 593 (C.A.), aff’d 1914 CanLII 13 (SCC), 50 S.C.R. 283, Meredith C.J.O., stated, at p. 602 (para. 7): “It is […] erroneous to treat either the corporation or its council as trustees for the ratepayers. They are, no doubt, in the sense in which the Sovereign is spoken of as a trustee for the people, trustees for the inhabitants of the municipality; but they are, in my opinion, in no other sense trustees, but a branch of the civil government of the Province.”

[135] I think the matter was sensibly summarized by Ian Rogers, in The Law of Canadian Municipal Corporations (Toronto: Thomson Reuters, 2019, loose-leaf), at §1.24:

Only in a broad sense can the corporation be said to be acting as a trustee but there is no trust relationship in the legal sense and the analogy of the position of directors of companies as trustees of the company’s money and assets cannot be validly applied to the relationship between a municipal corporation and its members. The corporation can, in a loose sense, be regarded as a fiduciary since it is the protector of public rights; where a right of the inhabitants has been infringed the Ontario Municipal Act vests in it the power of enforcing it in respect of that infringement.

[136] Neither the CTA nor the City’s by-laws stipulate that the City holds or should take title to all or part of its property “in trust” for ratepayers or residents. While a municipality can hold land in a trust, this requires proper terms: see Aura Ventures Corp. v. Vancouver (City), 2023 BCCA 209, at paras. 44-46.

[137] In the present case, the Disputed Land is not held in trust by the City. The Disputed Land is part of the City Lands transferred in 1971 from the Conservation Authority to the Borough of York. The deed of transfer does not record the Borough as holding title in trust for any person or group of persons or for any specific purpose. The habendum in the deed states:

To have and to hold unto the said Grantee, its successors and assigns, to and for its and their sole and only use for ever. Subject nevertheless to the reservations, limitations, provisoes and conditions, expressed in the original grant thereof from the Crown.

As well, the parcel register recording that transfer does not designate the transferee as holding title in trust.

E. Summary

[138] The application judge committed legal error by failing to consider the extensive statutory framework that informs the determination of the appellants’ claim. By so doing, she failed to appreciate that her Judicial Public Lands Immunity rule would operate, as a practical matter, as an amendment to four statutes: the Real Property Limitation Act; the Land Titles Act; the City of Toronto Act, 2006; and the Municipal Act, 2001. That too was a legal error by the application judge.

PART 2 – THE CHAIN OF CASES RELIED ON BY THE APPLICATION JUDGE

[139] The Judicial Public Lands Immunity rule created by the application judge marked the culmination of a line of reasoning that emerged from about half a dozen decisions issued by Ontario Superior Court judges over the past 25 years. In this section, I will review and critique the line of reasoning used in those cases. As well, I will examine a handful of older appellate cases on which some of the Superior Court cases drew to craft an immunity from adverse possession for municipally-owned public lands. In my view, the use by those Superior Court decisions of earlier appellate jurisprudence to support such an immunity from suit was misplaced, based as it was on partial readings of those cases, taken out of context. Finally, the Superior Court cases, including the present one, fail to explain the source of the judicial power to craft a rule of common law that, in its practical effect, operates to amend the statutes reviewed earlier in these reasons.

A. The seed planted: Teis v. Ancaster (Town)

[140] The case of Teis involved a claim by a farmer of adverse possession of small strips of land owned by a municipality. The trial judge granted a declaration of adverse possession. This court upheld that decision on the basis that the test of inconsistent use did not apply to cases where both parties laboured under the mutual mistake that the disputed land was owned by the claimant.

[141] In a lengthy obiter section at the end of his decision, Laskin J.A. expressed “some discomfort” in upholding a possessory title to land that a municipality would use as a park. He pointed out that some American states and Alberta protect municipal lands from adverse possession claims, especially those devoted to public use. After noting that the parties in Teis had argued the case on the basis that municipal land was subject to adverse possession claims, Laskin J.A. concluded, at para. 38, with the following obiter reflection:

Whether, short of statutory reform, the protection against adverse possession afforded to municipal streets and highways should be extended to municipal land used for public parks, I leave to a case where the parties squarely raise the issue.

[142] Implicit in this obiter reflection by one panel of this court was a strong suggestion that the current statutory scheme regarding adverse possession of real property contained a defect. Not a constitutional flaw; not an ultra vires-type flaw; but a flaw based on a lack of wisdom, at least as perceived by the court, who thought that a better legal regime should be established.

[143] That led to a second implicit suggestion by the Teis court: If “statutory reform” did not occur, then the courts should act. Wherein lay the power of judges to craft a rule that would act as an exception to, and amendment of, a statutory regime, the panel did not say.

[144] As mentioned, statutory reform did occur subsequent to the Teis decision but, as it turned out, not in a way that satisfied some Ontario courts. Ontario’s municipal legislation underwent a major reform with the passage of the Municipal Act, 2001 and the City of Toronto Act, 2006. As well, the province’s limitations legislation underwent a major reform in the early 2000s, which saw a complete reworking of the limitations law applicable to personal actions but the continuation of the existing limitations law governing claims against real property. More recently, statutory protection against adverse possession has been enacted for Crown public lands and provincial parkland. None of these statutory reform processes created an immunity for municipal lands from adverse possession claims, including municipal parklands.

B. The seed watered

Prescott & Russell (United Counties) v. Waugh

[145] That legislative choice seemed to bother the courts; their push to cloak municipal lands with a special immunity from suit continued. The decision in Prescott & Russell (United Counties) v. Waugh (2004), 15 M.P.L.R. (4th) 314 (Ont. S.C.), considered adverse possession claims against forest lands owned by an upper-tier municipal corporation. The motion judge concluded the record did not permit any factual determination whether the claimants had established a possessory title. However, at the request of the parties, he considered whether the claims to possessory title for two separate parcels were barred: one parcel on the basis that the land was a road allowance within the meaning of RPLA s. 16, and the other parcel – called Part 9 – on the basis that the municipality held the land for the public benefit.

[146] In the result, the motion judge in Waugh held that: (i) part of the first parcel might not have been used as a road allowance, so the claim against that parcel could proceed to trial; and (ii) the parcel the municipality had acquired for forestry purposes – Part 9 – possessed a “very high public interest purpose.” In respect of that forestry land the motion judge stated, at paras. 21-22:

When a municipality acquires lands for forestry purposes a very high public interest purpose arises as can be seen by the meaning the legislature has ascribed to that expression. It makes eminent sense that, in order to protect this vital public interest and as a matter of public policy, lands held by a municipality in such circumstances cannot be the subject of a claim for adverse possession.

When part 9 was acquired and incorporated into the totality of Larose Forest, it could not be lost by adverse possession anymore than the rest of Larose Forest could. I therefore conclude that the respondents cannot make a claim for possessory title over part 9. [Emphasis added.]

[147] To reach that conclusion, the motion judge in Waugh grounded his power to create an immunity from adverse possession for forestry lands owned by a municipality solely on the 1982 decision of this court in Household Realty Corp. v. Hilltop Mobile Home Sales Ltd. (1982), 1982 CanLII 2257 (ON CA), 37 O.R. (2d) 508 (C.A.). Household Realty was the first appellate decision used in the chain of Superior Court cases to support the creation of an immunity for municipal lands from adverse possession claims.

[148] The Waugh motion judge read Household Realty as standing for the proposition that “property owned by a municipality for a general public benefit cannot be lost by adverse possession”: Waugh, at para. 20. With respect, that proposition cannot be found in Household Realty, where the analysis of the court was confined to pre-1922 claims that could be asserted against municipal road allowances.

Household Realty Corp. v. Hilltop Mobile Home Sales Ltd.

[149] At this point, I propose to examine the decision in Household Realty in some detail. The incomplete reading of Household Realty by the motion judge in Waugh was picked up in subsequent decisions. It therefore is necessary to understand precisely what Household Realty decided.

[150] Prior to 1922, the protection from adverse possession claims afforded by what is now RPLA s. 16 was limited in scope to waste or vacant land of the Crown. In 1922, provisions extending the statutory protection to road allowances and public highways owned by the Crown and municipalities were added.[^12] RPLA s. 16 now reads:

16. Nothing in sections 1 to 15 applies to any waste or vacant land of the Crown, whether surveyed or not, nor to lands included in any road allowance heretofore or hereafter surveyed and laid out or to any lands reserved or set apart or laid out as a public highway where the freehold in any such road allowance or highway is vested in the Crown or in a municipal corporation, commission or other public body, but nothing in this section shall be deemed to affect or prejudice any right, title or interest acquired by any person before the 13th day of June, 1922. [Emphasis added.]

[151] In Household Realty, this court was required to consider the nature of a municipality’s interest in a road allowance before the 1922 amendments to RPLA s. 16. In that case, counsel argued that regardless of whether the Crown or municipality owned the freehold of the road allowance in question, the owner’s property rights were “subject to a trust for the benefit of the public, which cannot by any ordinary act or omission of the owner be lost or extinguished”. That argument, and the Household Realty court’s initial comments on it, were set out at p. 515 (paras. 15-16) of Household Realty, parts of which were quoted in the Waugh decision:

The important point, in her submission, was that whoever owned the soil and freehold of the road allowance, whatever property rights the owner had in it were then, as they are today and will be tomorrow, subject to a trust for the benefit of the public, which cannot by any ordinary act or omission of the owner be lost or extinguished. Upon the registration in 1850 of Plan 3 by which the land here in question was dedicated as a road allowance, the road allowance became, by operation of statute ([Survey’s Act], 1849 (Ont.), c. 35, ss. 41 and 42), a “public street or highway”. This being so, the ownership of the soil and freehold in it did not carry with such ownership the same proprietary rights as accrue to an owner of “ordinary” private property. The property vested in the municipality (assuming that it was the owner) would have been only a “qualified property to be held and exercised for the benefit of the corporation in accordance with the powers conferred upon it by the Legislature and not otherwise” (Re Ogilvie Flour Mills and Winnipeg, 1927 CanLII 283 (MB KB), [1927] 1 W.W.R. 833 at 845, 36 Man. R. 412, 33 C.R.C. 92, [1927] 2 D.L.R. 606 (K.B.)).

I agree with this latter statement as it applies to property that is a public street or highway. There is of course the well-established maxim “once a highway always a highway” which comprehends essentially the same principle. As Rogers points out in his Law of Canadian Municipal Corporations, (2nd ed.) vol. 2 at p. 1096:

The right of ownership in real property, such as a highway, a market or a public wharf, held by a municipality for the common benefit or use of its inhabitants and of the Queen’s subjects in general, is of such a public character that it cannot, as a general rule, be lost by adverse possession over the prescriptive period. It is expressly declared by statute that road allowances cannot be extinguished by adverse possession. [Emphasis added.]

[152] Pausing there, the motion judge in Waugh referred to the preceding extract from Household Realty as supporting the proposition that “real property owned by a municipality for a general public benefit cannot be lost by adverse possession”: at para. 20. With respect, that was an incomplete and, therefore, incorrect reading of Household Realty by the Waugh motion judge because the analysis of this court continued after the passage quoted in Waugh. The court in Household Realty went on to hold that the concluding words of RPLA s. 16, which were added in 1922, contemplated the possibility of a person acquiring title to a road allowance by adverse possession prior to 1922: at p. 516 (para. 17).

[153] This court acknowledged that prior to the amendments to RPLA s. 16 in 1922, the “public character” of a municipal road allowance – in the sense of the public’s right of passage over a highway that has become public – would prevent the rule of adverse possession applying to it: at p. 517 (paras. 21-23). But this court asked the question, at p. 516-17 (para. 20):

Does it follow, however, that as a result of having acquired that statutory status [of a road allowance], the road allowance in this case necessarily became subject to a "trust" for the benefit of the public, whose rights of passage over it could not thereafter be lost save by its being formally closed-up and disposed of in the manner provided by statute? I think not; indeed there appears to be ample authority that this does not follow.

[154] This court held that for a road allowance to attract the pre-1922 common law protection against adverse possession, some public right of passage over the road must have arisen, either through actual use of the road or an assumption by the municipality of jurisdiction over it. Absent such public character of the road, adverse possession could arise: at p. 517 (paras. 21-23).

[155] Accordingly, the court in Household Realty did not state the broad principle attributed to it by the motion judge in Waugh. On the contrary, the discussion in Household Realty was limited to the case of road allowances – now exempt from adverse possession claims by RPLA s. 16.

[156] The motion judge in Waugh took what he understood to be the pre-1922 law relating to road allowances and unilaterally extended it to land acquired for forestry purposes.

[157] Like the application judge in the present case, the motion judge in Waugh made no reference to the limited immunities from suit afforded by municipal legislation.

Woychyshyn v. Ottawa (City)

[158] Five years later, the court in Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.), dealt with a claim of adverse possession against a small portion of an urban park owned by the City of Ottawa. The application judge dismissed the claim on the basis that the claimants had not established that their use of the disputed land was open, notorious, peaceful, adverse, exclusive, and continuous “for any period”.

[159] In obiter, the application judge went on to hold that since the disputed land was part of a park owned by the municipality, it was “exempt from a claim for possessory title.” To make that holding, he advanced the principle that a loss of municipal property through adverse possession would be contrary to the “high public interest” in preserving municipal property. His source for this principle was the “concern” expressed by the courts in Teis, Waugh, and an appellate case that appeared for the first time in this line of argument, Colchester South (Township) v. Hackett, 1928 CanLII 8 (SCC), [1928] S.C.R. 255, affirming Hackett v. Municipal Corporation of the Township of Colchester South (1927), 61 O.L.R. 77 (C.A.).

[160] I have reviewed the reasoning in Teis and Waugh. Let me deal with Hackett.

Colchester South (Township) v. Hackett

[161] In Hackett, the Township sought to eject the defendant from lands that the Crown had conveyed to it. The defendant resisted, taking the position that it had acquired possessory title to the land. The defendant succeeded at trial, but the trial judgment was set aside by this court and possession given to the Township, a result affirmed by the Supreme Court of Canada.

[162] Two strands of analysis run through the decision of this court and that of the Supreme Court in Hackett. In the first strand, both courts concluded the defendant had not shown the actual, constant, and visible possession necessary to establish possessory title: O.L.R., at pp. 82-83 (paras. 17 and 25); S.C.R., at p. 257.

[163] The second strand concerned the legal effect of the trust language in the Crown’s grant of the land to the Township. The deed’s habendum stated:

To have and to hold to the said Corporation of the Township of Colchester and their successors in office forever in trust for a public wharf and public purposes connected therewith. [Emphasis added.]

[164] This court expressed the view that the public right created by that express trust could not be destroyed by the trustee Township’s negligence in permitting circumstances to arise that might see the alienation of the property by adverse possession: O.L.R., at p. 83 (para. 18). The Supreme Court agreed. On this issue, it made two points. First, the Supreme Court stated, at p. 256:

I have been very much impressed by the force of the reasons given by [the CAO] in support of [its] suggestion that the lands which were the subject of the grant to the municipality were thereby dedicated to a public use, a dedication which was accepted by the public (of this acceptance there is abundant evidence) and that this dedication gave rise to rights of enjoyment by the public, closely analogous to the rights of the public in respect of a public highway, and that such rights are not, ·nor is a title such as that of the municipality, given for the purpose of supporting and protecting them, capable of being nullified, in consequence of adverse possession, by the provisions of the Statute of Limitations upon which the appellant founds his case. [Emphasis added.]

[165] The Supreme Court went on to explain the consequences of the Crown’s grant of the land to the Township on the express trust contained in the deed:

The [defendant] can only succeed upon the hypothesis that the municipality has lost its title. If that be so, it follows that, as concerns the piece of land in question, the object of the trust has necessarily failed. It would seem, again, to follow, on ordinary principles, that a resulting trust has arisen in favour of the Crown. [Emphasis added.]

[166] The Supreme Court emphasized that its comments on this point were confined to the specific trust language contained in the deed of conveyance stating, at p. 257:

[I]t should be noticed that here we are only concerned with property which is granted by the Crown to a public body subject to an express trust to permit the public to enjoy in it rights of physical user, as in a highway. [Emphasis added.]

[167] Both courts stated that it was not necessary to express a decided opinion on this point given that the defendant had not made out an adverse possession claim: O.L.R., at p. 84 (para. 21); S.C.R., at p. 257.

[168] Returning to the decision in Woychyshyn, the application judge did not identify that the “concerns” expressed in Hackett were obiter or, more importantly, that the Supreme Court had limited those concerns to cases where the grant of land to a municipality was on terms of an express trust. Instead, the Woychyshyn application judge pulled certain comments in Hackett out of their context and then tried to use them to support quite a different proposition. As well, the Woychyshyn application judge’s analysis did not refer to RPLA s. 16 or the Municipal Act, 2001.

Oro-Medonte (Township) v. Warkentin

[169] Prior to the present case, the most extensive discussion of the immunity of municipal lands from adverse possession was undertaken by the application judge in Oro-Medonte. That case involved a strip of land, called the Promenade, that runs along the western shore of Lake Simcoe. On the west side of the strip are located residences on subdivision lots; on the east side, Lake Simcoe. There was no dispute that the Township held title to the Promenade. However, owners along part of the Promenade asserted possessory title to the parts of the Promenade that lay between their subdivision lots and the lake.

[170] After an exhaustive examination of the evidence, the application judge concluded that: (i) although the earlier owner of the Promenade lands had dedicated them to the Township for the purpose of a public road allowance, the Township’s purported approval and assumption of the Promenade for such use was void; (ii) as a result, RPLA s. 16 did not apply; and (iii) instead, the Township owned the land for public use other than as a highway.

[171] Before determining whether the adjacent subdivision lot owners had established adverse possession claims to parts of the Promenade, the application judge considered whether municipally-owned land used for the public’s benefit other than as a highway should be immune from adverse possession claims. He started his analysis with a consideration of Hackett, an analysis that suffered from the same misreading and misuse that occurred in Woychyshyn; recited the concluding obiter in Teis; referred to the decisions in Waugh and Woychyshyn; and quoted from Household Realty, but in the same incomplete and misleading way as the court in Waugh. The application judge regarded those decisions as providing the “common law concepts” for the “judicial development of the law”, which led to his creation of the Public Benefit Test. Under that test, land purchased by or dedicated to the municipality for the use or benefit of the public and, since its acquisition, used by and of benefit to the public is “immune from claims of neighbouring landowners based on prescriptive rights or adverse possession”: at paras. 115-19.

[172] In fashioning that judicial rule, the Oro-Medonte application judge also relied on the decision of the Supreme Court of Canada in Vancouver v. Burchill, 1932 CanLII 29 (SCC), [1932] S.C.R. 620. Burchill had nothing at all to do with a claim of adverse possession of municipal land. It was a negligence case in which the defendant municipality advanced the argument that since taxi a driver injured on a municipal street had not renewed his taxi licence, he was a trespasser on the street, thereby depriving him of the right to recover damages for negligence against the municipality. (An argument that would strike modern eyes as ridiculous.)

[173] In rejecting that submission, the Supreme Court distinguished between a private landowner, who enjoys the absolute right to exclude anyone from its property, and a municipality, which “has no such rights upon its streets. It holds them as trustee for the public. The streets remain subject to the right of the public to ‘pass and repass’”. As the context of the Burchill discloses, the Supreme Court’s comments were not directed to the issue of whether adverse possession could be claimed against municipal roads or any other municipally-owned lands. The comments dealt with a completely different issue: a municipality’s power, if any, to restrict the public’s access to roads.

[174] Notwithstanding the Oro-Medonte application judge’s lengthy legal analysis, the decision made no acknowledgement that: the newly fashioned Public Benefit Test amounted to an extension of the protection provided by RPLA s. 16; it provided a municipality with a new immunity from suit not found in the Municipal Act, 2001; and that, in its effect, it amended LTA s. 44(1)-3.[^13]

[175] In the result, the application judge held that the claims to possessory title for the parts of the Promenade on which the adjacent landowners had not built any structures failed as the landowners had not met the requirements for adverse possession. However, the application judge reached a different conclusion for those portions of the Promenade on which adjacent landowners had erected structures, such as boathouses, decks, and docks. He concluded those landowners had advanced a prima facie case that the Township may have acquiesced to the erection of those structures, thereby preventing it from seeking their removal. He referred that issue to trial, so the potential for successful adverse possession claims against some parts of the Promenade remained.

Richard v. Niagara Falls

[176] The penultimate case in this chain of Superior Court jurisprudence is the decision in Richard v. The Corporation of the City of Niagara Falls, 2018 ONSC 7389, 4 R.P.R. (6th) 238. On the evidence, the application judge found that the disputed parcel of land was held by the municipality for the benefit and use of the public. He concluded that the adjacent landowner had not demonstrated the requisite elements to establish a claim for adverse possession.

[177] Although the application judge referred to Teis, Woychyshyn, and Oro‑Medonte, he did not use them to apply an immunity from suit for municipal land. Instead, he regarded his approach to considering whether the municipality had been dispossessed of its land as similar to that used in those cases, in the sense that it would be difficult for any encroachment onto municipal land used for a public benefit to be shown to be inconsistent with public use. Unlike the present case, however, in Richard no fence separated the disputed lands from the remaining municipal lands.

The present case

[178] The last case in this chain of Superior Court cases is the present one. By way of legal analysis to support her creation of a Judicial Public Land Immunity rule, the application judge referred to some of the prior jurisprudence: the obiter at the end of Teis; and the “bottom lines” in Waugh, Woychyshyn, Oro-Medonte, and Richard.

[179] She then considered whether the Disputed Land qualified for the protection of the Oro-Medonte Public Benefit Test under which land purchased by or dedicated to a municipality for the use or benefit of the public and, since its acquisition, had been used by and of benefit to the public would be immune from claims of neighbouring landowners based on adverse possession. The application judge concluded the Disputed Land did not attract the protection of that test as the City could not demonstrate it was used by the public after acquisition by the Conservation Authority, but before it was fenced off. The application judge also found that until the present application was brought, “there was no evidence that the City was aware of the lands being public.”

[180] Consequently, the application judge’s solution was to expand the Oro‑Medonte Public Benefit Test. Her reasoning was brief, confined to paras. 74‑78 of her reasons:

The City is simply unable to patrol all its lands against such adverse possessors. The courts cannot demand the same vigilance of a private landowner to watch its borders of a public entity.

I find that a private individual must not be able to acquire title by encroaching on public lands and fencing off portions for their private use in the manner of two property owners.

These lands, as originally acquired, were for a “very high public interest”.

In these circumstances, the private landowner may not proceed to fence off public lands and exclude the public and succeed in a claim for adverse possession.

As a matter of public policy, this would be a dangerous precedent if allowed.

[181] In her reasons, the application judge, after quoting the obiter at the end of Teis calling for statutory reform, commented that none had occurred. As I pointed out in paras. 103-107 and 132 above, that is incorrect. The statutory reform that took place may not have been that which satisfied the wishes of the application or other judges, but it did occur.

[182] Like the judges in the Superior Court cases before hers, the application judge did not acknowledge that her Judicial Public Lands Immunity rule would operate, in practice, as amendments to the RPLA, LTA, CTA or Municipal Act, 2001. As I read her reasons, she proceeded on the basis that the Superior Court cases that preceded hers provided sufficient legal authority to create an immunity not present in any of the applicable statutes.

C. Summary

[183] To support her creation of a new Judicial Public Lands Immunity rule, the application judge relied on a chain of Superior Court cases – Waugh, Woychyshyn, Oro-Medonte, and Richard – that had purported to find in earlier appellate decisions – Hackett, Burchill, and Household Realty – a broad principle of municipal land immunity from adverse possession that those appellate decisions, in fact, did not contain.

[184] When stripped of their faulty reliance on those appellate decisions, the rule that emanated from this case, as well as the earlier Superior Court cases, rested on a simple proposition: If a court thinks it would be a good thing to enact a legal rule, it can do so, with the wisdom of the judicial idea, itself, providing the court with the power to bring the legal rule into existence. As I will explain, that rather naked assertion of judicial power is not one our law has recognized as a source of judicial power, especially in an area controlled by statute.

PART 3 – THE LIMITS ON JUDICIAL RULE-MAKING IN THE FACE OF STATUTES

A. The paramountcy of statutes

[185] I start my analysis by recalling a trite principle of Canadian law, but one that seems to have been overlooked in the series of Superior Court cases culminating in the decision under appeal. As stated by Ruth Sullivan in The Construction of Statutes, 7th ed. (LexisNexis: Toronto, 2022), at p. 530:

It follows from the principle of legislative sovereignty that validly enacted legislation is paramount over the common law. Acting within its constitutionally defined jurisdiction, the legislature can change, add to or displace the common law as it thinks appropriate and the courts must give effect to that intention regardless of any reservations they might have concerning its wisdom.

[186] The legal framework in which the issue at the centre of this appeal arises is dominated by statutes, starting with the RPLA.

B. The comprehensiveness of the RPLA

[187] While at common law a person wrongfully dispossessed of land had the right to enter upon the land and repossess it, statute long ago codified and modified those common law principles and, as well, placed a limit on the period of time during which the owner of land could make an entry on or bring an action to recover the land: Graeme Mew, The Law of Limitations, at §11.1.[^14]

[188] Despite that statutory codification and modification of the common law a long time ago, my colleagues proceed on the basis that the law of adverse possession, including the identification of lands immune from adverse possession claims, today remains a residual part of the common law that the judiciary can change and enlarge. In support of this position, the majority’s reasons quote the opening two sentences in para. 17 of the Supreme Court decision in Nelson (City) v. Mowatt, that trace the origins of the principles of adverse possession back to the common law. In those opening two sentences, Brown J. wrote for the court:

Adverse possession is a long-standing common law device by which the right of the prior possessor of land, typically the holder of registered title and therefore sometimes referred to as the “true owner”, may be displaced by a trespasser whose possession of the land goes unchallenged for a prescribed period of time. From as early as The Limitation Act, 1623 (Eng.), 21 Jas. 1, c. 16, the prior possessor’s right to recover possession was curtailed by limitation periods.

[189] But para. 17 of Nelson did not end there, for Brown J. continued by stating:

This rule allowing for the later possessor acquiring ownership of land after the passage of a certain time was codified in English law by the Real Property Limitation Act, 1833 (U.K.), 3 & 4 Will. 4, c. 27, which was received into the law of British Columbia on November 19, 1858 by operation of what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253. Since then, British Columbia’s successive limitation statutes, including the provisions which I have already canvassed and which govern the Mowatts’ claim, have effectively reproduced the 1833 English statutory codification of adverse possession. Under those statutes, the limitation period began to run at the point in time at which the true owner’s right to recover possession first arose: the date of dispossession or discontinuance of possession (see for example s. 17 of the Statute of Limitations (1924)), as determined by the test for adverse possession. [Emphasis added.]

[190] Notwithstanding the common law origins of adverse possession, in Nelson the Supreme Court recognized that close to two hundred years ago those principles were codified and modified by statute and incorporated into various provincial legislative schemes.

[191] Ontario’s statutory codification of adverse possession principles followed a somewhat similar path to that of British Columbia outlined in the Nelson case. The statutory predecessor to our current RPLA dates back to An Act to amend the Law respecting Real Property, 1834, (U.C.) 4 Will. IV, c. 1, which adopted the language of the Real Property Limitations Act, 1833 (U.K.), c. 27: Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at para. 17; see also the legislative history recounted by Keith J. in Di Cenzo Construction Co. Ltd. v. Glassco (1976), 1976 CanLII 853 (ON SC), 12 O.R. (2d) 677, at pp. 687-89 (paras. 48-60).

[192] As Keith J. observed in Di Cenzo Construction at p. 687 (para. 50), “[i]n none of these statutes is there any relevant exemption with respect to the Crown or a municipality.” However, there had existed a 1769 Imperial Statute – the Nullum Tempus Act, 9 Geo. III, c. 16 – that enacted certain provisions regarding the adverse possession of Crown lands. Those provisions were incorporated into the RPLA in 1902 by the Statute Law Revision Act, S.O. 1902, c. 1; some are now found in RPLA ss. 3 and 16, the latter of which exempted from adverse possession “waste or vacant land of the Crown”.

[193] As mentioned, in 1922 RPLA s. 16 was amended to extend its protection to road allowances or highways the title to which is vested in the Crown or in a “municipal corporation, commission or other public body.” That statutory framework was continued by the revisions to Ontario’s limitation legislation that occurred in the early 2000s and applies today.

[194] Not only did the statutory predecessors to the RPLA codify common law principles, but the statutory regime now set out in the RPLA deals comprehensively with the matter of adverse claims against real property. That statute occupies the field of adverse possession. The RPLA:

• sets the limitation period in which a title holder must bring an action to recover land from which it has been dispossessed;
• deems the right to make entry or bring an action first accrues “at the time of the dispossession”;
• details when such rights “first accrue” for various estates and interests in land;
• identifies what conduct does not constitute a repossession of the land that would stop the limitation clock from running;
• s. 15 provides that upon the determination of the statutory limitation period for bringing any action, the title of the landowner is extinguished;
• s. 16 exempts from this statutory regime only two types of land: (i) waste or vacant Crown land; and (ii) road allowances or highways in which title is vested in the Crown or a municipality; and
• the Act continues by dealing with: actions involving mortgages, express trusts and dower; the effect of concealed fraud of running of time; the effect of disabilities or incapacities on running of time; and certain actions against Crown lands.

[195] As I read my colleagues’ reasons, their analysis ignores this history of statutory codification and the implications of that codification for the ability of judges to alter codified principles. In my respectful view, they err by treating the common law of adverse possession as surviving the codification of the legal principles in that area some two centuries ago.

[196] Since the enactment of the real property limitation statutory regime, the role of Ontario courts on issues of adverse possession has been limited to interpreting the provisions of the RPLA.[^15] Much jurisprudence has been generated around the interpretation of the words “possession” and “dispossessed” in the RPLA.[^16] One must look to this body of interpretative caselaw to understand the nature and character of conduct that can result in the dispossession of a title holder. The courts’ interpretation of the RPLA has fleshed out the content of conduct that results in the adverse possession of land or the dispossession of the title holder. As Brown J. observed in Nelson, at para. 27, in the context of considering British Columbia’s real property limitations statute: “While courts have a role in defining what constitutes dispossession under British Columbia’s limitations legislation, legislative intent must be respected.”

[197] This body of jurisprudence has been the product of statutory interpretation, not the development of the common law or the common law modification of statute. No residual common law of adverse possession remains extant today.

C. Other statutes affect claims against municipal lands

[198] While the RPLA is a comprehensive legislative scheme governing adverse possession, it is not the only statutory regime that touches on the issue in this appeal.

[199] As described, Ontario’s municipal legislation regime was reworked extensively in the early 2000s with the passage of the Municipal Act, 2001 and the City of Toronto Act, 2006. Both statutes contain express immunities from suit for municipalities. None of those statutory immunities concern the protection of municipal lands from suit. Yet, the immunity created by the application judge would now expand the existing statutory immunities granted to municipalities. None of the Superior Court judges acknowledged this would be the effect of exercising some free-standing power of courts to improve statutes, at least in the eyes of some, by effectively amending them.

[200] The Superior Court cases that expressly mentioned the conversion of municipal lands into the Land Titles regime referred to the statutory protection provided by LTA s. 44(1)-3 to matured, pre-conversion possessory title claims. Yet, the practical effect of creating a judicial immunity would be to amend that section by carving-out municipally-owned lands. Again, none of the decisions acknowledged that would be the practical effect of their ruling.

[201] Instead, this chain of cases simply took the judicial “wish” expressed in Teis’s concluding obiter as a pad from which to launch an exercise in judicial rule-making that is indifferent to the statutory regimes that envelop the issue of whether adverse possession lies against municipally-owned lands.

D. There is no legislative “gap” for the common law to fill

[202] The City argues that the RPLA contains a “gap” that courts are entitled to fill. While I agree that Canadian law recognizes a limited ability of the common law to fill a “gap” in some legislation, that “gap-filling” power is very limited. The conditions under which it can be exercised, and therefore the restrictions on its use, are described in Sullivan in The Construction of Statutes at §17.02 [1]:

The issue of [the reliance on the common law to supplement legislation] arises … when legislation is incomplete in that it says nothing of, or does not fully address, a matter relating to the subject of the legislation … When legislation is incomplete … the common law may be relied on to fill the “gap” in the legislation unless there is persuasive evidence that the legislature intended otherwise.[^17]

[203] In my view, for several reasons this narrow common law power of courts cannot support the application judge’s creation of a Judicial Public Lands Immunity rule.

[204] First, in none of the cases where the courts created an immunity for municipally-owned lands – Woyshychyn, Oro-Medonte, and the present case – did the judge purport to rely on this principle to fashion the immunity. Indeed, one is struck by the lack of statutory interpretation analysis undertaken in those cases.

[205] Second, the purported “gap” in the legislation is not a failure to consider whether some lands should be exempt from the operation of the adverse possession regime in RPLA ss. 1 to 15. The Legislature clearly turned its mind to the issue when it enacted and then expanded RPLA s. 16 to exempt not only vacant and waste Crown land but also road allowances and highways owned by the Crown or municipalities. Instead, the “gap” purported to exist in this case is the contention by the affected landowner – the City – that the list of exempt properties in RPLA s. 16 is not long enough because it does not include other types of lands it owns.

[206] I think the answer to this contention is most succinctly stated in Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), in their Canon No. 8: Omitted-Case Canon: “[A] matter not covered is to be treated as not covered.” The authors, at p. 93, first recall what Justice Felix Frankfurter wrote in his article, “Some Reflections on the Reading of Statutes” (1947) 47 Columbia LR 527, at p. 533: “Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and eviscerations. [The judge] must not read in by way of creation.” They then turn to the observation by Blackmun J., writing:

Nor should the judge elaborate unprovided-for exceptions to a text, as Justice Blackmun noted while a circuit judge: “[I]f the Congress [had] intended to provide additional exceptions, it would have done so in clear language.”[^18]

[207] Third, in the language used by Sullivan, “there is persuasive evidence that the legislature intended otherwise” than leaving a gap in the legislative scheme. As I have repeated several times, the RPLA is not the only legislation that touches on the issue raised by this appeal. The absence of an exemption or immunity from suit for adverse possession claims against municipal land in any of the Municipal Act, 2001, the City of Toronto Act, 2006, and s. 44(1)-3 of the Land Titles Act, when coupled with the absence of municipal public lands from the exemptions of RPLA s. 16, is powerful and persuasive evidence that legislature intended, in the current legislative regime, not to exempt municipally-owned lands, other than road allowances and highways, from claims for adverse possession.[^19]

[208] It is rare for a court to amend one statute to extend an exemption.[^20] However, in the present case the court crafted a legal rule that effectively amends four statutes. Such sweeping judicial intervention should set off judicial alarm bells that warn the court against straying far beyond the proper bounds of the exercise of its judicial power.

[209] Finally, the lack of institutional competence of courts to make changes to statutory regimes, such as the immunity rules declared in this case as well as in Woyshnchyn and Oro-Medonte, was succinctly described by Professor John Finnis in his 2018 essay, Judicial Power: Past, Present and Future (London: Policy Exchange, 2018).[^21] Professor Finnis stated, at p. 36:

Making law is taking responsibility for the future, a responsibility of persons answerable for the new laws to their subjects. For discharging this responsibility, the institutional design of serious legislatures is broadly superior to the institutional design and procedures of even sophisticated appellate courts – not least because bearers of judicial power are rightly made immune from any requirement to answer for their judgments, and from almost any liability for them.

[210] The institutional limits of the courts to make law from whole cloth in cases like the present one can be illustrated by listing several important questions that were not addressed or received no resolution in the chain of immunity cases, including this one:

• How extensive is the problem of potential claims of adverse possession against municipal public lands? Specifically, how much municipal land has not been converted into the Land Titles regime and therefore does not enjoy the existing statutory protection against go-forward adverse possession claims afforded by LTA s. 51(1)? How many matured, pre-conversion legacy claims likely remain?
• What is the practical cost/benefit calculus, taking into account both municipalities and affected private landowners, of simply continuing with the status quo versus implementing an immunity rule?
• Should an immunity rule distinguish between protecting against legacy claims based on adverse possession of land on which no structures have been built from those where structures were built on the land? Oro-Medonte thought municipal land on which structures had been built should be treated differently. The present case ignores the issue;
• What should be the scope of the protection afforded to municipal lands by an immunity principle? Oro-Medonte created protection for land that “was purchased by or dedicated to the municipality for the use or benefit of the public.” In the present case, the protection was extended to “public lands” owned by a municipality. Are the categories the same? Are they co‑extensive with parkland, as the City now seems to argue on this appeal, or do they cover a broader class of lands? We cannot tell from the judgment in this case as it does not declare any legal principle but simply dismisses the application;
• If the rule is limited to protecting municipal parks, what is “parkland”? Land specifically dedicated by by-law as a park?[^22] Land over which public rights of recreation exist? Land recognized by zoning by-law as parkland? Land designated on a municipal Official Plan as “green space”? What evidence is there before this court to allow any principled, evidence‑based determination of that issue?
• Would stripping landowners of matured possessory claims against municipal lands work an unfairness in some instances? Such an approach would run counter to that adopted by the Legislature in 2021 in respect of Crown public lands and provincial parks;
• Would compensation to the adverse possessors be appropriate in those or other circumstances?[^23] The evidence in this case shows that the Disputed Land was assessed for municipal property tax purposes on the basis it was owned by the appellants (and their predecessors in title), who paid property taxes to the City on them. Should the City be required to refund those taxes? With interest?
• To give effect to an immunity for municipal lands from adverse possession claims, what legislation would have to be amended and to what extent?

[211] Constrained as they are by the policy-making limits of the adversarial litigation system, courts lack the ability to inquire into and develop the evidentiary record needed to pose and answer such questions. From an institutional perspective, courts that attempt to make up a municipal-lands immunity rule would be “flying blind”, which is not a reasoned basis on which to exercise judicial powers, especially because courts are not politically or practically accountable to the public for the consequences of their actions.

E. Conclusion

[212] The application judge lacked the power to create and impose her Judicial Public Lands Immunity rule. It could not operate to deprive the appellants of the relief they sought based on their matured adverse possession claim to the Disputed Land. Accordingly, the application judge committed reversible legal error by dismissing their application.

[213] Whether, as a matter of policy, the public interest would be better served by extending the protection of RPLA s. 16 to cover additional categories of municipally-owned lands may well be an issue worthy of further debate. But the proper forum for that debate is at the Legislature – the body that creates the powers and immunities of municipal corporations – not in the courts.

DISPOSITION

[214] For the reasons set out above, I would allow the appeal and set aside the Judgment dated June 13, 2022. In its stead, I would grant the appellants the relief set out in paras. 1(a) and (b) of their notice of application issued November 17, 2021.

[215] I would award the appellants their costs of this appeal fixed in the amount of $50,000, inclusive of disbursements and applicable taxes. I would reverse the costs at first instance. If the parties are unable to agree on the amount, they may file brief submissions on the issue with the court.

Released: June 23, 2023 “J.C.M.”

“David Brown J.A.”

[^1]: McConnell v. Huxtable, 2014 ONCA 86, 370 D.L.R. (4th) 554, at para. 14; Beniuk v. Lemington (Municipality), 2020 ONCA 238, 150 O.R. (3d) 129, at para. 45.

[^2]: The Public Lands Act defines “public lands” as including “lands heretofore designated as Crown lands, school lands and clergy lands” and “lands acquired by the Crown in right of Ontario at any time for the purposes of a past or current program of the Ministry”: ss. 1 and 17.1(2). The amendments to the Provincial Parks and Conservation Reserves Act, 2006 eliminate unbarred adverse possession claims to “public lands that are within a provincial park or conservation area” and “public lands acquired for purposes of the Act that are not in a provincial park or conservation reserve”: s. 14.5(1).

[^3]: The Supporting People and Businesses Act, 2021 received Royal Assent on December 2, 2021.

[^4]: Ministry of Consumer & Business Services, Land Titles Conversion Qualified (LTCQ) to Land Titles Absolute Plus (LT+) Client Guide (2001): https://www.ontario.ca/land-registration/land-titles-conversion-qualified-ltcq-land-titles-plus-ltplus-client-guide.

[^5]: Registration under the LTA may result in the registration of an absolute or qualified title. A qualified title under Land Titles is one where the land registrar makes an entry on the title register excepting “from the effect of registration any estate, right or interest arising before a specified date … or otherwise particularly described in the register”: LTA, s. 37(1). An absolute title is free “from all estates and interests whatsoever”, but subject to “the liabilities, rights and interests that are declared for the purposes of this Act not to be encumbrances, unless the contrary is expressed on the register”: LTA, s. 45. As s. 44 provides, a possessory title acquired by an adjoining landowner is one such liability, right and interest that is declared not to be an encumbrance and therefore still attaches to absolute title.

[^6]: Section 66(1) of the Act also limits the City’s liability for damages caused by the interruption or reduction of the amount of a public utility supplied to the City or to the land of any person as a result of an emergency or a breakdown, repair or extension of its public utility if, in the circumstances, reasonable notice of its intention to interrupt or reduce the supply is given. The Municipal Act, 2001 contains similar provisions.

[^7]: See also ss. 391 and 392 that provide immunity from suit for City councillors, officers, employees, and agents in certain circumstances. Part XV of the Municipal Act, 2001 contains similar provisions.

[^8]: The only provisions of the Act dealing with adverse possession concern the effect of the registration of tax deeds or a notice of vesting in the case of lands owned by ratepayers sold or forfeited by reason of tax arrears: s. 350. The Municipal Act, 2001 contains similar provisions.

[^9]: In Edmonton, as early as 1934, the lands of the city were immunized to adverse possession: An Act to amend the Acts constituting The Edmonton Charter, S.A. 1934, c. 73, s. 13. When Alberta undertook its municipal reform, this immunity was extended to other cities and eventually to all municipalities: City Act, R.S.A. 1955, c. 42; see Zbryski v. City of Calgary (1965), 1965 CanLII 528 (AB SCTD), 51 D.L.R. (2d) 54 (Ab. Q.B.).

[^10]: Toronto Municipal Code, c. 213, Real Property.

[^11]: Toronto Municipal Code, c. 608, Parks.

[^12]: A useful legislative history of RPLA s. 16 can be found in the trial decision of Keith J. in Di Cenzo Construction Co. Ltd. v. Glassco (1976), 1976 CanLII 853 (ON SC), 12 O.R. (2d) 677 (H.C.J.), at pp. 687-89 (paras. 48-60).

[^13]: The Oro-Medonte application judge recognized LTA s. 51 at paras. 23-24 of his reasons, but made no mention of LTA s. 44(1)-3.

[^14]: A comprehensive discussion of the English common law regarding the possession and dispossession of real property and the statutory law regarding the limitations on the time in which an action to recover possession of real property could be brought as of the mid-1700s can be found in William Blackstone, Commentaries on the Laws of England in Four Books, in the Second Book, Ch. XIII, “Of the title to things real, in general” and the Third Book, Ch. X, “Of injuries to real property; and first of dispossession, or ouster of the freehold.”

[^15]: For example, in McConnell v. Huxtable this Court interpreted the phrase in RPLA s. 4, an “action to recover any land”, to encompass an equitable claim for property based on the remedy of constructive trust: at paras. 30 and 38.

[^16]: This point was made clearly by the Supreme Court of Canada in Nelson in its consideration of British Columbia’s law of adverse possession. Brown J. wrote, in part, at paras. 17 and 19:

Since then, British Columbia’s successive limitation statutes, including the provisions which I have already canvassed and which govern the Mowatts’ claim, have effectively reproduced the 1833 English statutory codification of adverse possession. Under those statutes, the limitation period began to run at the point in time at which the true owner’s right to recover possession first arose: the date of dispossession or discontinuance of possession (see for example s. 17 of the Statute of Limitations (1924)), as determined by the test for adverse possession.

To these elements of adverse possession the City would add: that the possessor’s or possessors’ use of the disputed lot must have been inconsistent with the “true owner’s” present or future enjoyment of the land. Alternatively put, possession, to be truly adverse, must entail a use of the property that is inconsistent with the true owner’s intended use of the land. This “inconsistent use” requirement was stated by Lord Bramwell in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273:

I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it: that is not the case here, where the intention of the plaintiff and her predecessors in title was not either to build upon or to cultivate the land, but to devote it at some future time to public purposes. The plaintiff has not been dispossessed, nor has she discontinued possession, her title has not been taken away, and she is entitled to our judgment. [Emphasis added.]

[^17]: Quoted with approval in Peace River Hydro Partners v. Petrowest Corp., 2022 SCC 41, 475 D.L.R. (4th) 1, at para. 112.

[^18]: Petteys v. Butler (1966), 367 F.2d 528 (8th Cir., U.S.), at p. 538 (Blackmun J., dissenting).

[^19]: The 2021 amendments to the Public Lands Act and Provincial Parks and Conservation Act, 2006 demonstrate a legislative willingness to expand the categories of publicly-owned lands exempt from the operation of the RPLA, when the Legislature has decided that policy reasons justify such an expansion.

[^20]: In the present case, there was no evidence of any changed social circumstances akin to those dealt with in R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654. Toronto is full of parks that trace their origins back to the 19th century. Torontonians liked parks back then; they continue to do so today. There has been no change in that social condition.

[^21]: John Finnis, “Judicial Power: Past, Present and Future” (2015) Policy Exchange. Speech given at Gray’s Inn Hall, London (U.K.): https://policyexchange.org.uk/blogs/john-finnis-judicial-power-past-present-and-future.

[^22]: The Disputed Land in this case was not explicitly dedicated by City by-law as parkland or a public laneway for any of the relevant time period.

[^23]: The 2021 amendments to the Public Lands Act that eliminated unbarred adverse possession claims against Crown “public lands” stipulated that no person was entitled to compensation for any loss arising from the enactment: s. 17.1(9). A similar provision can be found in s. 14.5(8) of the Provincial Parks and Conservation Reserves Act, 2006.