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Real Property - Adverse Possession (3). Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (SCC, 2025) the Supreme Court of Canada allowed a homeowner's appeal, this from an Ontario Court of Appeal ruling that upheld the dismissal of an adverse possession application at the Superior Court, which "sought an order for possessory title to the disputed land".
Here the court conducts a thoughtful historical review the law of adverse possession in Ontario, including the central role of the RPLA:A. The Law of Adverse Possession in Ontario
[22] In Ontario, the RPLA sets out rules governing claims for possessory title, also commonly known as adverse possession or squatters’ rights, including the rights of the prior possessor of land, who is typically the paper title holder and therefore referred to as the “true owner”, to recover land. By the operation of ss. 4, 5(1) and 15 of the RPLA, a true owner’s interest in land is extinguished in favour of the possessory title acquired by a trespasser when the latter establishes “dispossession”. A review of the RPLA and jurisprudence indicates that courts must resort to the common law to apply the clear but undefined terms of the relevant provisions. It is for this reason that I cannot accept the proposition of the dissenting judge of the Court of Appeal that “[n]o residual common law of adverse possession remains extant today” (para. 197). However, the law of adverse possession is also marked by a long history of statutory enactments, which have codified parts of the common law and modified others, including in recent years. Determining a possessory claim thus requires courts to ensure legislative intent is respected and apply common law principles in a manner consistent with the statutory scheme (Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 27).
[23] This Court has observed that the doctrine of adverse possession is a “long-standing common law device”, which serves to determine when dispossession has occurred (Mowatt, at para. 17). This view is shared in the literature where the doctrine has been described as having “a long pedigree in the common law” (E. Kaplinsky, M. Lavoie and J. Thomson, Ziff’s Principles of Property Law (8th ed. 2023), at p. 164). The doctrine remains “alive and well” in parts of Canada even after having been the subject of English statutory codification, which was largely reproduced in provincial legislation (ibid.; A. W. La Forest, Anger & Honsberger Law of Real Property (3rd ed. (loose-leaf)), at § 29:8; G. Mew, D. Rolph and D. Zacks, The Law of Limitations (4th ed. 2023), at pp. 504-5; Mowatt, at para. 17).
[24] The English statutory codification described above took place under the imperial Real Property Limitation Act, 1833 (U.K.), 3 & 4 Will. 4, c. 27, the provisions of which formed the basis of Ontario’s An Act to amend the Law respecting Real Property, and to render the proceedings for recovering possession thereof in certain cases, less difficult and expensive, S.U.C. 1834, 4 Will. 4, c. 1. Notably, the limitations statutes abolished some remedies for the recovery of land and technical actions available under the common law (La Forest, at §§ 29:9-29:10). For example, at common law, the true owner was still able to recover adversely possessed land if it could be done peaceably, even if the right to sue was lost (Kaplinsky, Lavoie and Thomson, at p. 165). This type of recovery was precluded by limitation statutes (ibid.). Sections 4, 5(1) and 15 of the RPLA closely replicate the provisions of the imperial statute, which provide that the right of recovery of an owner is barred following the prescribed statutory period, at the conclusion of which the owner’s title to the land is extinguished. Although the limitation period has varied in length since the introduction of these provisions, the relevant wording has remained unchanged (Bank of Montreal v. Iskenderov, 2023 ONCA 528, 168 O.R. (3d) 1, at para. 17).
[25] The Ontario legislation was amended in the early 20th century to specify exceptions to the application of the provisions described above for waste or vacant Crown land, road allowances, and public highways. However, the amendments expressly preserved rights, title, and interests that had been acquired as of June 1922 in respect of road allowances and highways. Together, these amendments form s. 16 of the RPLA.
[26] Substantial efforts to reform the law of limitations in Ontario were undertaken as early as 1969, which eventually culminated in the enactment of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B (see, e.g., Ontario Law Reform Commission, Report on Limitation of Actions (1969)). However, the law of limitations governing real property was left undisturbed by this enactment and attempts at reform were abandoned (Mew, Rolph and Zacks, at p. 10). As I will discuss further below, subsequent legislative enactments in the area of property rights, including the LTA, PLA, and PPCRA, have nevertheless significantly impacted the operation of adverse possession by eliminating the ability to acquire possessory title under the RPLA, but preserving matured possessory claims.
[27] Where a claim for adverse possession is available, courts apply the relevant statutory provisions to determine if it is made out. The RPLA provides that the limitation period will start running at the time of “dispossession” (s. 5(1)), the elements of which are established in the jurisprudence. For a claim to succeed, the trespasser must establish: (1) actual possession of the land by the trespasser for the required statutory period; (2) an intention to exclude the true owner from their property; and (3) effective exclusion of the true owner from their property (Pflug v. Collins, 1951 CanLII 80 (ON SC), [1952] O.R. 519 (H.C.J.); Keefer v. Arillotta (1976), 1976 CanLII 571 (ON CA), 13 O.R. (2d) 680 (C.A.); Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.)). Actual possession is established where the act of possession is open and notorious, adverse, exclusive, peaceful, actual and continuous, all of which must be present for the claim to succeed (Mowatt, at para. 18; Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), citing Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.)).
[28] As this Court recognized in considering British Columbia’s equivalent legislation, “[w]hile courts have a role in defining what constitutes dispossession under British Columbia’s limitations legislation, legislative intent must be respected” (Mowatt, at para. 27). While the legislature may redefine the meaning of a common law term (Giffen (Re), 1998 CanLII 844 (SCC), [1998] 1 S.C.R. 91, at para. 26), it must signal its intention to do so; otherwise, the word will be understood to have retained its common law meaning (R. v. Holmes, 1988 CanLII 84 (SCC), [1988] 1 S.C.R. 914, at pp. 929-30; R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 20; R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 17.01.Pt2[1]).
[29] While the statute has preserved common law rules for defining dispossession, it is nevertheless clear from the history of legislative amendment in this area that courts must proceed with caution to respect legislative intent (see R. v. Basque, 2023 SCC 18, at paras. 40 and 45). In this respect, I note that the public benefit test considered by the courts below is of relatively recent vintage. Unlike in Basque, where the Court considered the impact of a statutory provision on an existing common law rule, in this case we must consider the impact of case law which post-dates the enactment of the relevant provisions of the RPLA. In such a case, the appropriate starting point is the statutory scheme. It is necessary for a court to closely examine the statute in order to determine whether legislative intent would be undermined by recourse to a novel common law rule (see Sullivan, at § 17.02[1]). . Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (SCC, 2025) the Supreme Court of Canada allowed a homeowner's appeal, this from an Ontario Court of Appeal ruling that upheld the dismissal of an adverse possession application at the Superior Court, which "sought an order for possessory title to the disputed land".
The court summarizes this case which turns on whether the originally municipal lands were "immune from adverse possession under the “public benefit test”", either under prior doctrine or under a new common law principle:I. Overview
[1] The issue in this appeal is whether the appellants, Pawel Kosicki and Megan Munro, can succeed in their claim for possessory title under the Real Property Limitations Act, R.S.O. 1990, c. L.15 (“RPLA”). Since 2017, the appellants have jointly owned a residential property in Toronto. Several years after purchasing the property, they learned that the respondent, the City of Toronto (“City”), is the title holder of a portion of their backyard, which is enclosed by a chain link fence.
[2] The City concedes that the appellants have satisfied the test for adverse possession. It is undisputed that the parcel of land at issue has been fenced off, openly and continuously, since at least 1971. However, the City argues that the claim cannot succeed at common law because the disputed parcel of land is designated in municipal plans as parkland for public use. The application judge concluded that the City had not established that the property was immune from adverse possession under the “public benefit test” articulated in certain other lower court decisions. However, she determined it was nonetheless inappropriate for the City’s title to be extinguished as “a matter of public policy” (2022 ONSC 3473, 32 M.P.L.R. (6th) 306, at paras. 76-78). The Court of Appeal upheld the decision, but reframed the public benefit test. It held that adverse possession claims will fail where the municipality has not waived its rights over the property, or acknowledged or acquiesced to its use.
[3] In my view, the RPLA, which extinguishes both the title and the right of the paper title holder to recover the land 10 years after dispossession, governs this dispute. The legislature has exempted certain public lands from the application of the RPLA for over a century. New exceptions for additional categories of public land have been enacted in related statutes since the last amendments to the RPLA. Although these new exceptions grant explicit protection to provincial parkland from the application of the RPLA, they do not mention municipal parkland. Moreover, despite prospectively abolishing the possibility of acquiring possessory title for land registered under the Land Titles Act, R.S.O. 1990, c. L.5 (“LTA”), the legislature has preserved matured possessory claims. The preservation of acquired possessory title is also consistent with the RPLA’s purpose as a statute of repose. In this statutory context, to recognize a new common law exception in addition to the exceptions the legislature has set out in s. 16, which would serve to retroactively deprive a claimant of acquired possessory title, would defeat the legislature’s intent.
[4] For the reasons that follow, I would allow the appeal. Under the applicable statutory rules, the City’s title to the land was extinguished over four decades ago. To accept the City’s argument would be to interfere with the appellants’ matured possessory claim and disregard the applicable statutory scheme.
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IV. Issue
[17] The sole issue before this Court is whether the appellants’ claim for possessory title, which otherwise satisfies the requirements of the RPLA, can be defeated because the disputed land forms part of a larger tract of land that eventually became a municipal park. The parties agree on the legal effect of ss. 4, 5(1) and 15 of the RPLA. There is no debate that, on a strict application of the statute, the appellants would be entitled to the disputed land. However, the parties disagree as to whether the land is nevertheless immune from the operation of the statute as a matter of common law. Resolving the issue therefore also requires that we consider whether, in light of the governing statutory scheme in Ontario, it is appropriate to recognize a new common law basis to exempt possessory claims in addition to those set out in statute.
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[84] On a proper interpretation of the RPLA, I conclude that ss. 4 and 15 apply to the present case, and there is no applicable exception, in either s. 16 or other statutes, to bar the appellants’ possessory claim. It is undisputed that the appellants have established that there has been open, notorious, peaceful, adverse, exclusive, actual and continuous possession for 10 years in accordance with ss. 4 and 5(1) of the RPLA; the City’s title to the disputed land was extinguished pursuant to s. 15 of that same statute. Importantly, pursuant to s. 44(1) of the LTA, the disputed land became subject to the appellants’ possessory title upon registration. The City’s title to the disputed land has long been extinguished; its title cannot be resurrected.
VIII. Disposition
[85] For these reasons, I would allow the appeal with costs throughout. The order of the Court of Appeal and the judgment of the Ontario Superior Court of Justice are set aside and the appellants’ application is allowed. It is declared that the appellants are the fee simple owners of the disputed land and the registrar for the Land Registry division of Toronto is directed to amend the parcel register for PIN 10526-0078 (LT) to include the disputed land. . Kosicki v. Toronto (City) [role of Land Titles Act]
In Kosicki v. Toronto (City) (SCC, 2025) the Supreme Court of Canada allowed a homeowner's appeal, this from an Ontario Court of Appeal ruling that upheld the dismissal of an adverse possession application at the Superior Court, which "sought an order for possessory title to the disputed land".
Here the court considers the statutory interpretation principle of 'harmony across related statutes', here in relation to adverse possession, the Land Titles Act and other statutes:[53] The adoption of a Torrens-based land title system under the LTA, the successor of the land registry system under the Registry Act, R.S.O. 1990, c. R.20, achieves a simplified way of certifying title that “provide[s] the public with security of title and facility of transfer” (Durrani v. Augier (2000), 2000 CanLII 22410 (ON SC), 50 O.R. (3d) 353 (S.C.J.), at para. 41; Lawrence v. Maple Trust Co., 2007 ONCA 74, 84 O.R. (3d) 94, at para. 30). The Torrens land title system guarantees that the person named in the register has indefeasible title: the parcel register should be a perfect mirror image of the state of title; no searches behind title should be required; and the accuracy of the register is guaranteed by the state (M. Neave, “Indefeasibility of title in the Canadian context” (1976), 26 U.T.L.J. 173, at p. 174; Kaplinsky, Lavoie and Thomson, at pp. 546-47). Indefeasibility has been described as “immunity from attack by adverse claim to the land or interest in respect of which he is registered, which a registered proprietor enjoys” (Frazer v. Walker, [1967] 1 A.C. 569 (P.C.), at p. 580).
[54] The acquisition of possessory title by trespassers undermines the indefeasibility of title, and as a result, s. 51(1) of the LTA eliminates this possibility with respect to land registered under the land titles system, despite the RPLA. Under the heading “No title by adverse possession, etc.”, s. 51(1) provides: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. [55] By virtue of this provision, all land registered in the land titles system, including municipal parkland, receives protection against possessory claims. Through s. 32(1) of the LTA, which enables a land registrar to register any land registered under the Registry Act in the land titles system, Ontario has converted virtually all land title in the province to electronic land titles (J. R. Wood, “Understanding Electronic Registration: Rights of Way and Property Rights Generally” (2014), 38 R.P.R. (5th) 4, at p. 72). As of 2013, less than 0.1 percent of titles in Ontario were still governed by the Registry Act (p. 4, fn. 1).
[56] I note that the municipal land in the present case was converted to the land titles system on October 22, 2001 (A.R., vol. I, at p. 155), at which point Étienne Brûlé Park became protected from all future claims of adverse possession by virtue of s. 51(1) of the LTA. In light of the protection against adverse possession conferred by s. 51(1) of the LTA, there is no evidence to support the City’s contention that it would require extensive resources and efforts to protect parkland from possessory claims (R.F., at paras. 10 and 95).
[57] Under the LTA, however, the legislature has subordinated the accuracy of the land titles system to competing priorities, notably the preservation of acquired possessory title. Section 51(2) of the LTA provides that possessory claims that have matured prior to the registration of the property are preserved and possessory title may be obtained (Barbour v. Bailey, 2016 ONCA 98, 66 R.P.R. (5th) 173, at para. 31; 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). Matured possessory title to land may be lost if the adverse possessor does not contest the registration of the land under the land titles system to the paper title holder after receiving notice of the registration (Aragon (Wellesley) Development (Ontario) Corp. v. Piller Investments Ltd., 2018 ONSC 4607, 94 R.P.R. (5th) 236, at para. 125).
[58] The legislative policy choice to preserve matured possessory claims is reaffirmed by s. 44(1) of the LTA, which provides that upon first registration, the registered land remains subject to certain liabilities, rights and interests, regardless of whether they are registered on title. This includes possessory title acquired by an adjoining land owner (s. 44(1) 3). In the present case, the disputed land’s parcel register explicitly states that the registration is subject to rights to the land acquired by “adverse possession” (A.R., vol. II, at p. 78).
[59] More recently, the legislature again turned its mind to the RPLA, notably in amending statutes dealing with public lands in Ontario, namely, provincial parkland, conservation reserves, and other public lands. In 2021, the legislature amended both the PLA (s. 17.1) and the PPCRA (s. 14.5) to exempt certain categories of public lands from the application of the RPLA, but preserved matured possessory claims (Supporting People and Businesses Act, 2021, S.O. 2021, c. 34).
[60] The PLA protects “public lands” from the acquisition of possessory title under the RPLA (PLA, s. 17.1). Public lands are defined as including “lands heretofore designated as Crown lands, school lands and clergy lands” (PLA, s. 1). Section 17.1(2) of the PLA further clarifies that for the purpose of the exemption from possessory claims, public lands include “lands acquired by the Crown in right of Ontario at any time for the purposes of a past or current program of the Ministry”. For its part, the PPCRA exempts from the application of the RPLA: (1) public lands that are within a provincial park or conservation reserve; and (2) public lands acquired for the purposes of the PPCRA that are not in a provincial park or conservation reserve (PPCRA, s. 14.5(1)). Provincial parks and conservation reserves are designated by regulation (PPCRA, s. 54(1)). The PPCRA also expressly deems any land that is part of a municipality, but which has been designated as a provincial park or conservation reserve, as separated from that municipality, for as long as it is designated as such (s. 31(1)).
[61] These recent amendments undermine the City’s suggestion that the legislature has not turned its mind to s. 16 of the RPLA for over a century (R.F., at para. 69). Although these new “immunities” do not appear in the text of s. 16, in effect they statutorily expand the categories of land exempt from the application of the RPLA. They do not include municipal land, unless such land is designated under the PPCRA (see Designation and Classification of Provincial Parks, O. Reg. 316/07).
[62] Consistent with the LTA, the legislature also preserved possessory claims that matured prior to the coming into force of the Supporting People and Businesses Act, 2021. Both s. 17.1(1) of the PLA and s. 14.5(1) of the PPCRA state in identical language that “no person may acquire a right, title or interest . . . 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”. Although the legislature has removed the possibility of acquiring possessory title to the public lands described above, it has decided to do so on a prospective basis.
[63] At the second reading of the Supporting People and Businesses Act, 2021, the responsible Minister identified the objective of the amendments as “prevent[ing] people from unlawfully claiming ownership of public lands for the benefit of Ontarians” (Legislative Assembly of Ontario, Official Report of Debates (Hansard), No. 10A, 2nd Sess., 42nd Parl., October 26, 2021, at p. 396 (Hon. Nina Tangri)). Although statements of purpose may be vague or imprecise, “providing information and explanations of proposed legislation is an important ministerial responsibility, and courts rightly look to it in determining the purpose of a challenged provision” (R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 36). From the responsible Minister’s statement of purpose, it is fair to conclude that the legislature turned its mind to the need to protect certain additional categories of public land from possessory claims for the benefit of the public. At the time of these amendments, the public benefit test had already been the subject of many lower court decisions (see, e.g., Prescott & Russell (United Counties) v. Waugh (2004), 15 M.P.L.R. (4th) 314 (Ont. S.C.J.); Woychyshyn v. Ottawa (City) (2009), 88 R.P.R. (4th) 155 (Ont. S.C.J.); Oro-Medonte; Richard v. Niagara Falls, 2018 ONSC 7389, 4 R.P.R. (6th) 238).
[64] Notably, there is no mention of exempting municipal parkland from adverse possession in other relevant statutory enactments (see, e.g., Municipal Act, 2001; City of Toronto Act, 2006, S.O. 2006, c. 11, Sch. A). I note that Alberta has expressly created immunity from possessory claims for municipal land (see, e.g., Municipal Government Act, R.S.A. 2000, c. M-26, s. 609).
[65] In Ontario, the legislature has made a policy choice to confer special legislative treatment to a limited class of public lands and preserve matured possessory title. Considering the recent statutory enactments specifically dealing with the availability of adverse possession for public lands, I am of the view that recognizing a common law protection against such claims for municipal parkland would run contrary to legislative intent. . Kosicki v. Toronto (City)
In Kosicki v. Toronto (City) (SCC, 2025) the Supreme Court of Canada allowed a homeowner's appeal, this from an Ontario Court of Appeal ruling that upheld the dismissal of an adverse possession application at the Superior Court, which "sought an order for possessory title to the disputed [SS: municipal] land":VI. Analysis
[20] The question raised in this appeal requires this Court to interpret the text of the relevant provisions of the RPLA in their entire context and in light of their purpose (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both citing E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). In my view, while the common law continues to play a role in the law of adverse possession in Ontario, the majority of the Court of Appeal erred in exempting the present possessory claim from the provisions of the RPLA. It is clear from a contextual assessment of the provisions that the legislature did not intend to exempt municipal parkland from the RPLA’s operation and intended to preserve matured possessory claims.
[21] Below, I will first consider the interaction of the common law and the RPLA, which collectively govern claims of adverse possession in Ontario. I will then explain why, on a proper interpretation of the RPLA, its provisions govern the appellants’ possessory claim. Accordingly, at paras 30-84 the court thoughtfully walks through it's reasoning on these issues in light of the particular RPLA and other statutory provisions applicable, which do not exempt municipal parkland from the application of adverse possession doctrine.
. Kubiniec v. Dy
In Kubiniec v. Dy (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from the trial dismissals of "claims for adverse possession or a prescriptive easement over part of the respondents’ lands".
Here the court considers the law of 'adverse possession':[9] There is also no error in the trial judge’s adverse possession analysis. He correctly stated that a claimant seeking possessory title must show actual possession; the intention to exclude the true owner from possession; and that the true owner was in fact effectively excluded from possession. Further, the possession must be open, notorious, constant, continuous, peaceful and exclusive: Fletcher v. Storoschuk (1981), 1981 CanLII 1724 (ON CA), 35 O.R. (2d) 722 (C.A.), at p. 724; Masidon Investments Ltd. v. Ham (1984), 1984 CanLII 1877 (ON CA), 45 O.R. (2d) 563 (C.A.), at p. 567, leave to appeal refused, [1984] S.C.C.A. No. 232. His conclusion that the appellant neither intended to exclude nor did exclude the true owners from the disputed lands is amply supported by the record. As he stated: “[the appellant’s] use of the land falls far short of exercising ‘dominion’, a term he frequently used, or to establish possession.” There was no error in trial judge additionally observing that the appellant also did not exclude others in the neighbourhood from the disputed land. . Margaritis v.Milne
In Margaritis v.Milne (Div Court, 2023) the Divisional Court considered a s.37 Conveyancing and Law of Property Act (CLPA) ['Lien on lands for improvements under mistake of title'] application to address 'improvements' accidentally performed on a neighbour's land, here a title transfer and compensation back to the original owner.
This law may have application to facts similar to adverse possession scenarios (regardless of whether they are under the Registry Act and the Land Titles Act):[3] On February 2, 2023, Dineen J. heard these applications. In careful and thorough reasons for decision, Dineen J. concluded that Mr. Milne had made lasting improvements to the strip of land in the belief that it belonged to him. [1] Justice Dineen exercised his discretion and granted title to the wedge of land to Mr. Milne pursuant to s. 37 of the Conveyancing and Law of Property Act.[2] As contemplated by s. 37 of the Act, Justice Dineen ordered that Mr. Milne compensate Mr. Margaritis for the value of the land to be retained by Mr. Milne.
[4] Mr. Margaritis appeals the order of Justice Dineen to this court as of right.[CLPA s.37(2)] At their core, his submissions invite the court to reweigh all of the evidence before the application judge and to make different findings of fact.
[5] In my view, Justice Dineen correctly interpreted s. 37 of the Act. Justice Dineen’s findings of fact, including that Mr. Milne had an honest and bona fide belief that the land was his, and that Mr. Milne made lasting improvements on the land, were reasonably open to him based on the record before him. I see no palpable and overriding error. Justice Dineen also properly exercised his discretion when considering what relief would be most just in the circumstances. Finally, I see no reason to interfere with Justice Dineen’s discretionary decision to have each party bear their own costs of the applications. I would dismiss the appeal.
Subsection 37 of the Act
[6] The relevant portions of subsection 37(1) of the Act read as follows:37 (1) Where a person makes lasting improvements on land under the belief that it is the person’s own, the person…[is] entitled or may be required to retain the land if the Superior Court of Justice is of opinion or requires that this should be done, according as may under all circumstances of the case be most just, making compensation for the land, if retained, as the court directs. [7] Before exercising the discretion to allow a person to retain land owned by another, the court must be satisfied that:a. the party must have genuinely believed that he or she owned the land;
b. the improvements must be of a lasting nature; and
c. the court must weigh the equities between the owner and the person making the improvements to determine whether it is appropriate to transfer the land to the person making the improvements.[4] [8] Justice Dineen correctly interpreted s. 37. He cited the leading cases and considered each of these three elements.
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[16] A lasting improvement is an addition to a property amounting to more than mere repair or replacement of waste. A “lasting” improvement is one that has permanence, in the sense of not being easily removable, as is the case with some fixtures.[7]
[17] Justice Dineen concluded that Mr. Milne had made lasting improvements by constructing a retaining wall, fencing, a c-channel; pouring concrete; and filling in the land by raising it four-feet to construct a parking pad. Each of these findings of fact was available to Dineen J. based on the evidentiary record before him. There is no basis upon which this court can interfere with those findings. . MacQuarrie v. Proulx
In MacQuarrie v. Proulx (Ont CA, 2023) the Court of Appeal considered adverse possession claims:[3] The respondents purchased their property on December 1, 2006. The appellant’s mother and her spouse obtained title to the appellant’s property in July, 1995, and the appellant became the sole owner in September, 2011. On February 19, 2007, all the lands came under the Land Titles system. Therefore, the claim for adverse possession had to be based on open, notorious, continuous, exclusive use without permission for a 10-year period prior to that date.
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B. Decision of the Application Judge
[8] The application judge applied the three-pronged test for determining adverse possession, the onus being on the party asserting the adverse possessory claim: Did the respondent establish: 1) actual possession of the property over a ten-year period prior to February, 2007? 2) the intention to exclude the true owner? 3) effective exclusion of the true owner?: Barbour v. Bailey, 2016 ONCA 98, 345 O.A.C. 311, at para. 35. . Billimoria v. Mistry
In Billimoria v. Mistry (Ont CA, 2022) the Court of Appeal considered an adverse possession claim over joint investment property where the claimant lived in a house for over ten years:The RPLA Issue
[31] Second, even if a limitation claim under the RPLA had been available, we see no error in the trial judge’s conclusion that the appellant had not established actual possession of the property for the requisite ten-year period under the RPLA.
[32] She correctly articulated the law in respect of adverse possession as set out by this court in Vivekanandan.
[33] She then provided comprehensive reasons for finding that the appellant had never established actual possession sufficient to dispossess the respondents. In particular, she noted that the appellant was occupying the property pursuant to a verbal agreement with the respondents. Given her finding that that the respondent co-owners permitted his occupation, the “adversity” element of adverse possession could not have been made out: Teis v. Ancaster (Town) (1997), 1997 CanLII 1688 (ON CA), 35 O.R. (3d) 216 (C.A.), at p. 221.
[34] She cited the fact that the property was an investment property, the informality of their relationship due to their friendship, the joint deposit on the property, the agreement that the appellant should live at the property rent-free in exchange for paying carrying costs with the idea that one day the property would be sold, the mortgage, insurance and tax documents which were sent to the respondents, two mortgage payments which were paid by the respondents and other ownership obligations which were assumed by the respondents.
[35] She also noted that the appellant had never told the respondents that the property was his alone. In fact, as recently as 2018, the parties jointly retained counsel to rectify the title issues to reflect the fact that they were all registered owners as tenants in common. She concluded that this evidence is inconsistent with the appellant’s intention to exclude the respondents from possession of the property.
[36] For all these reasons, the trial judge held that as a factual matter, the respondents never lost possession of the property, either by dispossession or discontinuance of possession. She held that the appellant therefore failed to meet his burden of showing that he had successfully dispossessed the respondents of their interest in the property or that the respondents had discontinued their possessory interest in the property such that their rights in the property were extinguished.
[37] We see no error in the trial judge’s conclusion that the appellant had failed to establish his claim under the RPLA. . Billimoria v. Mistry
In Billimoria v. Mistry (Ont CA, 2022) the Court of Appeal considered an adverse possession claim where the defendant claimed that adverse possession was extinguished under s.51, Land Titles Act:The Land Titles Act Issue
[23] In our view, the new issue the respondents raise on appeal, that s. 51 of the Land Titles Act bars the appellant’s claim, is properly before us and is dispositive.
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[26] The appellant claims that he is the sole owner of the property because his long physical occupation of the property dispossessed the respondents of their interest, within the meaning of s. 5 of the RPLA, and the respondents are now statute-barred pursuant to s.4 of the RPLA, from bringing an action to recover the property. He argues that reliance on the RPLA is not a claim for “adverse possession” and is not governed by the principles of adverse possession, but instead rests on a finding that the person entitled to the property has been “dispossessed” or had “discontinued … possession” more than 10 years before attempting to make entry or distress or bringing an action. He argues that the trial judge erred in applying the principles of adverse possession. He also argues that his claim falls outside of s.51 of the Land Titles Act. We do not accept the distinction the appellant is attempting to make. In essence, his claim is for adverse possession under the RPLA. Nor do we accept his argument that his claim is not caught by s. 51 of the Land Titles Act.
[27] Adverse possession is established where that claimant had actual “open, notorious, constant, continuous, [and] peaceful” possession for the statutory period of ten years in accordance with s. 4 of the RPLA, as well as an intention to exclude the true owner from possession, and effective exclusion of the true owner for the entire ten-year statutory period: Vivekanandan v. Terzian, 2020 ONCA 110, 443 D.L.R. (4th) 678, at para. 21.
[28] However, land that is registered in Land Titles cannot be obtained by adverse possession unless the ten-year exclusion period ran before the land was registered: Sipsas v. 1299781 Ontario Inc., 2017 ONCA 265, 85 R.P.R. (5th) 24, at para. 18. Section 51(1) is worded broadly and clearly embraces the claim the appellant is making. It provides, in relevant part:“Despite any provision of … the Real Property Limitations Act … no title to and no right or interest in registered lands under this Act that is adverse to or in derogation of the title of the registered owner shall be acquired hereafter or deemed to have been acquired heretofore by any length of possession or by prescription” (emphasis added). [29] In this case, the property was already registered in Land Titles at the time it was purchased by the parties, and thus, the appellant could not have obtained title to it by adverse possession. The appellant cannot make out a claim of adverse possession regardless of how long the appellant actually occupied the home.
[30] This alone is sufficient ground to dismiss the appeal.
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