COURT FILE NO.: CV-21-672326
DATE: 20220613
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pawel Kosicki and Megan Munro
Applicants
– and –
City of Toronto, formerly Corporation of the Borough of York
Respondent
Jeremy Sacks, for the Applicant
Michele Brady, for the Respondent
HEARD: May 27, 2022
THE HONOURABLE JUSTICE M. J. DONOHUE
REASONS FOR DECiSION
Overview
[1] The applicant owners of 2 Lundy Avenue, Toronto, seek an order for adverse possession of a parcel of city lands, Parts 2 and 3 on Plan 66R-23112.
[2] The disputed lands have been enclosed into their backyard by a chain link fence for decades.
[3] The respondent (“City”) acknowledges that the applicants’ evidence satisfies the “traditional” test for adverse possession. The test is as set out in the Ontario Court of Appeal decision of Teis v. Ancaster (Town of) (1997), 1997 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at pp. 220-221, that they or their predecessors had actual possession of the disputed land with the intention of excluding the true owner from possession; and that the true owner was effectively excluded from possession. The act of possession must be open, notorious, peaceful, adverse, exclusive, actual, and continuous.
[4] There is no dispute that the evidence supports exclusive use for more than ten years before the property was converted to Land Titles on October 22, 2001.
[5] The issue is whether the disputed lands are immune to a claim for adverse possession by virtue of being city lands.
The Law on Public Immunity from Adverse Possession Claims
[6] The parties recognize that municipally owned land in the form of public highways has long been protected from claims of adverse possession. See pp. 228-229 in Teis, in which Laskin J. wrote:
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….[Emphasis added.]
Several American states have legislation that prevents a limitation period from running against “municipal property devoted to public use”: see 3 Am. Jur. (2d), para. 271. Even at common law, some American courts have decided that municipally owned land used for a public purpose, such as a park, cannot be acquired by adverse possession: see, for example, Meshberg v. Bridgemport City Trust Co., 429 A.2d 865 and Schmitt v. Carbondale (City), 101 A. 755 (1917).
In Canada, Alberta is the only province with legislation protecting all municipally owned land against claims of adverse possession: Municipal Government Act, S.A. 1994, c. M-26-1, s. 609….
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.]
[7] There has been no statutory reform in this province, however, a number of cases at the trial level in Ontario have looked at the issue of whether municipally owned park land can be extinguished by adverse possession or perhaps “more stringent requirements must be met” when the land in dispute is owned by a municipality and would be used for a public park.
[8] In the 2004 case of Corporation of the United Counties of Prescott and Russell v Waugh, 2004 93173 (Ont. S.C.), the court considered an adverse possession claim of lands acquired for “forestry purposes”. The court concluded at para. 21:
When a municipality acquires land for forestry purposes a very high public interest purpose arises as can be seen by the meaning of 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. [Emphasis added.]
[9] The court relied on the definition of forestry purposes under the Trees Act, R.S.O. 1990, c. T.20, and its successor, the Forestry Act, R.S.O. 1990, c. F.26, to conclude the land had a very high public interest purpose.
[10] In 2009 the court in Woychyshyn v. Ottawa (City), 2009 66921 (Ont. S.C.), found that the applicant failed to provide an evidentiary basis for the adverse possession claim. The court then added its concerns added at para. 13:
In any event I have serious doubts that municipally owned land can be subject to a claim for possessory title. This is not a dispute between two private landholders. It is a claim by a private landholder (who paid nothing for the disputed land) to public parkland purchased with public funds for public use. 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.…
[11] The 2013 decision of Oro-Medonte (Township) v. Warkentin, 2013 ONSC 1416, concluded that the applicant failed to satisfy the test for adverse possession but also found that there was immunity from such claims for the following reason, at para. 118:
In my view, land acquired by a municipally and used for public purposes is held in trust for the benefit of the public and cannot be lost, or the municipality’s title extinguished, by reason of ordinary acts or omissions within the meaning of the law of adverse possession. The preservation of municipally owned land has been regarded by the legislature as imbued with special public significance as illustrated by the elaborate processes necessary for a municipal council to undergo in order to sell or convey municipally owned land. In addition, given that property that is owned by a municipality is held by way of a qualified title for public benefit, the interests of fairness and justice require that no one or two individuals should be allowed to deprive others of part of that benefit.
[12] The court in Oro-Medonte appears to have set out “more stringent requirements” as suggested by Laskin J. in Teis by setting out what has been referred to as the “Public Benefit Test”. At para. 119, the court wrote:
…I find that lands 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:
(ii) 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
(iii) since its acquisition by the municipality, the land has been used by and of benefit to the public.
[13] The test was considered by the court in 2018 in Richard v. Niagara Falls, 2018 ONSC 7389. Once again, the evidentiary base was not satisfied for an adverse possession claim, but the court added, at para. 27:
…in 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.
[14] The court, at para. 40, noted it was not necessary to formally dedicate the disputed lands as a public park before the city could claim that it intended to use the land for public benefit: “…I find that a court must assess the de facto situation, and is not bound by a public designation or the absence of such a designation.”
Purchase for the Use of the Public
When Did They Become Public Lands?
[15] The applicants focused their argument on the City’s acquisition of the disputed lands in 1971, when they were transferred to the City.
[16] There is, however, a relevant history dating back to 1958.
[17] The disputed lands were part of an expropriation plan by the Metropolitan Toronto and Region Conservation Authority, which took a stretch of land on the north side of the Humber River.
[18] The Conservation Authority expropriated the land in 1958. The registered plan states that the parcel of land “is required for the public purposes of the Metropolitan Toronto & Region Conservation Authority under section 19, Chapter 62, RSO 1950.”
[19] The Conservation Authority was a public body established at the request of two or more municipalities and was funded by same. See ss. 3, 35 and 36 of the Conservation Authorities Act, R.S.O. 1950, c. 62.
[20] Section 13 of the Act states: “The objects of an authority shall be to undertake and effect such scheme or schemes in respect of the watershed or part thereof for which it is established as the authority may determine.”
[21] Scheme is defined in s. 1(j) of the Act as follows:
“[S]cheme” means scheme undertaken by an authority for the purposes of the conservation, restoration and development of natural resources, other than gas, oil, coal and minerals, and the control of water in order to prevent floods and pollution, or for any of such purposes;
[22] The applicants submitted that simply because the registered plan by the Conservation Authority stated that it was for public purposes did not mean that it was for public purposes.
[23] I consider a conservation authority to be a public body that acts in the public’s interests.
[24] Its action was to expropriate this area of land. Black’s Law Dictionary defines expropriation as “a governmental taking or modification of an individual’s property rights, esp. by eminent domain”. Further “eminent domain” is defined as “the inherent power of a governmental entity to take privately owned property, esp. land, and convert it to public use, subject to reasonable compensation for the taking”.
[25] Such that “expropriation” by its very nature is an action for public purposes.
[26] I am persuaded that the disputed lands were taken for public use in 1958 by the Conservation Authority.
[27] The evidence is that after expropriation the Conservation Authority created Etienne Brule Park, as is demonstrated on the 1971 survey. Residents wrote in 1970 that the neighbourhood school children from Warren Park School used this park.
[28] Accordingly, I am satisfied that the lands were purchased for the use or benefit of the public and in fact had a very high public interest.
Description of the Expropriated Property and Disputed Lands
[29] The titled property now owned by the applicants is at the corner of Lundy Avenue and Warren Crescent. To the east of their property are 26 other properties, which all back on to the Humber River area to the south.
[30] A review of the 1958 registered survey plan shows a detailed description of those properties and the expropriated area to the south.
[31] Along the southern boundary of the 26 properties it states “fenced”. This fence line runs roughly east and west with the lands south of that line to the river being subject to expropriation.
[32] The property immediately east of the applicant’s property is now owned by Ms. Marie Turek. In the 1958 expropriation, the east/west property line juts north of the fence line, cutting a corner of the Turek property, and then runs west again to meet Lundy Avenue.
[33] It is this “trapezoid-like” piece of land, which juts north of the east/west fence line, that results in the disputed lands.
[34] The plan does not show an east/west laneway. However, the City’s evidence contains statements that, as of November 1970, a gravel laneway had been used from Lundy Avenue for the prior 40 years to access garages at the rear of the homes on Warren Crescent.
Fencing of Disputed Lands – When was it Erected?
[35] A survey conducted 13 years later, in 1971, shows fencing along the north side of the laneway extending west all the way to Lundy Avenue. The “trapezoid-like” disputed lands (shown as Parts 2, 3 and 4) have effectively been cut off from public access to the laneway and the park since at least 1971.
[36] The applicants urged the court to find that this fencing was in place even in 1958 when it was expropriated, such that it never was open to the public.
[37] The applicants point to an admission by the City’s deponent that there was fencing “but in a different location, … further west”.
[38] I am not satisfied on the record before me that the fencing continued due west to Lundy Avenue as it was in 1971. If there had been such a fence, I am persuaded that it would have been indicated on the detailed 1958 survey.
[39] A fence cutting off that area would be contrary to what existed at the time.
[40] In 1958 the west end of the expropriated property included a “frame house”, two “frame garages”, a “greenhouse”, and a “barn”. The “frame house” on the survey is located squarely in the disputed lands, just north of the laneway area.
[41] It is apparent that the expropriated property juts north and west to encompass the frame house land. There is no indication that there was a fence running between the frame house and the two frame garages immediately to the south of the house. This is a marked omission as there is a note of the fencing to the east of the disputed lands and there is a note of “post & wire fence” further west of the expropriated lands.
[42] I am persuaded that the fencing around the disputed lands went up between 1958 and 1971.
Who Erected the Fencing?
[43] There does not seem to be a suggestion by the parties that the extended fencing west to Lundy Avenue was erected by the Conservation Authority.
[44] For clarity, it seems important to consider who erected the fencing.
[45] The 1971 survey shows that chain link fencing runs west from the post on the Turek property along the laneway to Lundy Avenue, then north and east along the applicants’ property.
[46] The fact that it wraps around the applicants’ property makes it more probable than not that it was the property owner who installed the fence rather than the Conservation Authority.
History Between 1958 and 1971
[47] Over the 13 years the frame house on the trapezoid-like disputed lands, which sat to the north of the laneway, had been removed.
[48] The expropriated land became “Etienne Brule Park”. The court was not provided any evidence as to when this occurred.
[49] By 1971, on the applicants’ property on title, a brick dwelling had been built as well as a frame garage. The court was not provided with any evidence as to when either structure was built. Both structures are situated north of the disputed lands, although the southern wall of the frame garage appears to be right on the property line.
[50] As noted above, the property owner had erected a chain link fence south of their property line along the laneway and around their property. They have effectively kept the public from using or accessing these public lands since at least 1971.
Conveyance from the Conservation Authority to the City
[51] In 1969 the Conservation Authority proposed that the City take over the laneway. They were prepared to convey title for the nominal consideration of $2.00.
[52] In 1970 the City agreed to accept the conveyance of the lands as borough owned lands only and not as a public lane. This allowed access for the residents’ rear facing garages. It was left as a gravel road at the time. It was conveyed in 1971.
[53] The 1971 survey described Part 1 as the laneway; Parts 2 and 3 as the (now) disputed lands in the “trapezoid-like” area; and Part 4 as the small extension of the jutting piece north of the prior fence line, which cuts off a corner of the Turek property.
[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. Moreover, the City oversees and maintains over 1,500 parks across the city, covering over 8,000 hectares of land. Some are parkettes; some are larger “legacy” parks, such as High Park; and others are more natural spaces, such as waterfront and ravine lands.
[55] In 2013 Ms. Turek applied for an adverse possession claim of Part 4. The City consented to her application. Only hearsay evidence of unnamed persons was provided by the City as to why this was allowed without further consideration of all of Parts 2, 3, and 4.
[56] Under the City Official Plan, drafted in 2003, the disputed lands were zoned as “G”, meaning “Green Open Space District”. In 2013 it was zoned as “ON” meaning “Open-Space-Natural Zone”. Evidence was provided by the City that the City’s policy is sale or disposal of public-owned lands in the parks and open-spaced areas is discouraged, and no zoning by-law amendment would be permitted.
[57] Although the City did not follow this policy with the Turek strip of land, I do not feel bound to see the disputed lands handled in the same cavalier manner.
Effective Use of the Disputed Lands
[58] Since it has been drawn to the attention of the City, they have provided evidence that the disputed lands could be put to effective use for the public benefit.
[59] The laneway, which is now paved, is one of the few paved access points to the Etienne Brule Park and the 29-kilometre Humber River Recreational Trail. It is close to two bus routes, which make it accessible to transit users. The trail has a multi-use path suitable for cyclists and pedestrians.
[60] The City has considered and provided a plan that Parts 2 and 3, the disputed lands, could be effectively used to expand the access point. It would allow for a large sign for “wayfinding” to make the access more visible (user-friendly). It would also allow for potential seating such as a bench or gazebo-like structure.
Use By and For the Benefit of the Public Since Acquisition
[61] Under the second part of the Public Benefit Test, the question is whether the City has shown that the disputed lands have been used by and to the benefit of the public.
[62] Although some time during the 13 years before 1971 it would be reasonable to expect schoolchildren and adults to have accessed the park by a shortcut, “cutting the corner” across the disputed lands, there is no actual evidence of such.
[63] For over 50 years, the property owner’s extended fencing on the parkland has blocked the public from this wider access.
Analysis
[64] The lands were acquired using public funds for public use. If lost, they will deprive the public of reasonable use of the lands, which would enhance the public park.
[65] The applicants premised their argument that the disputed lands were already fenced off when they went into public hands. I found on the evidence that they were not so fenced in 1958 when expropriated for public purposes.
[66] Here 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.
[67] The courts have struggled repeatedly with this issue, but largely confined their rulings to factual findings that the public had not been excluded and so the adverse possession claims have not been made out.
[68] Here the actions of the property holders effectively excluded the public for at least 50 years. The adverse possession claim is made out on the “traditional” test.
[69] 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.
[70] Nonetheless, the court must consider whether it is appropriate for the City’s property rights to be extinguished when they discovered only of late that they had been excluded and the lands would be of particular public value.
[71] The applicants submit that the City should have known in 1971, and again in 2013, that the applicants were using their lands and excluding others.
[72] As discussed in Teis, p.221:
[O]pen possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner’s failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner: Ziff, Principles of Property Law, 2nd ed. (Toronto: Carswell, 1996) at pp. 118-26.
[73] In the case of public lands, there is a reasonable explanation why no action was taken.
[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.
[75] 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 private property owners.
[76] These lands, as originally acquired, were for a “very high public interest”.
[77] 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.
[78] As a matter of public policy, this would be a dangerous precedent if allowed.
Conclusion
[79] Accordingly, the application is dismissed.
Costs
[80] The court urges the parties to resolve costs. If they are unable to do so, I set the following timetable.
[81] The City may serve and file a one-page submission plus their bill of costs and any necessary attachments by June 20, 2022.
[82] The applicants may file a one-page submission plus their bill of costs and any necessary attachments by June 27, 2022.
[83] If required, the City may file a half-page reply by June 30, 2022.
[84] Such written submissions are to be forwarded to my chambers at 59 Church Street, St. Catharines, Ontario, L2R 7N8, or may be emailed to my assistant at St.Catharines.SCJJA@ontario.ca.
[85] Failing submissions as noted above by July 4, 2022 the court will consider the matter of costs to be resolved and closed.
M. J. Donohue J.
Released: June 13, 2022
COURT FILE NO.: CV-21-672326
DATE: 20220613
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pawel Kosicki and Megan Munro
Applicants
– and –
City of Toronto, formerly Corporation of the Borough of York
Respondent
REASONS FOR DECISION
M. J. Donohue J.
Released: June 13, 2022