The finale to a case which has gone through three levels of courts has wide implications for every law across the country. The Supreme Court of Canada last month ruled that judges do not have the power to create a new law just because they think it would be a good thing to do.
In its watershed decision, the court decided that a Toronto couple acquired title to a large chunk of municipal parkland by “adverse possession” – commonly known as squatter’s rights.
The case was started by Pawel Kosicki and Megan Munro who bought their home on Lundy Ave. in Etobicoke in 2017. A large part of what they believed was their back yard turned out to be a city-owned parcel of land measuring more than 3,673 square feet.
The land had been fenced in by a prior owner sometime between 1958 and 1971. The city expropriated it in 1971 to add to the adjoining Étienne Brûlé park which runs along the Humber river.
When the city refused to sell the land to the couple, they sued claiming ownership by adverse possession.
Under Ontario’s Real Property Limitations Act, if someone openly, peacefully, continuously, exclusively and adversely occupies land for a period of 10 years prior to the title being administratively converted to the Land Titles system, that person can claim possessory title. A successful court ruling extinguishes the ownership of the registered owner.
At the first court hearing, the city acknowledged that the couple satisfied the traditional legal test for adverse possession. But the judge decided to invent an exception to the statute, creating a new public benefit test which does not appear in the wording of the Act.
The lower court decision was upheld by the Ontario Court of Appeal in a 3-2 decision. However, in a blistering dissenting opinion, Justice David Brown wrote that judges could not effectively amend a statute by inventing an exception which was not part of the legislation.
In creating what he called a public lands immunity rule, Justice Brown said that his colleagues suffered from “a misconception of the power of judges to craft public policy” by enacting a new law.
The owners then appealed to the Supreme Court of Canada.
In a stunning 5-4 decision which reversed the decisions of the two lower courts, Justice Michelle O’Bonsawin ruled that the Real Property Limitations Act lays out a closed list of public lands immune from adverse possession, and municipal parkland is not on the list.
She wrote that the lower court judge’s recognition of a “novel retroactive blanket immunity” in favour of municipal parkland had the effect of undermining the intent of the original legislation.
Quoting an earlier case, she wrote that “it is beyond the power of a court to interfere in a carefully crafted legislative scheme just because it does not approve of the result produced by a statute in a particular case.”
The implications of the Kosicki case extend far beyond the interests of the parties involved in it and the fenced-in parcel of land on Lundy Ave. The Supreme Court has clearly warned lower courts that they should faithfully apply what the legislature enacts, and not substitute their own creation of a public benefit test.
Case citation: Pawel Kosicki v. City of Toronto, 2024 CanLII 30079 (SCC), <https://canlii.ca/t/k3zpz>