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The city of Toronto refused to sell this couple the land that makes up their backyard. Now they’re going to the Supreme Court — to claim squatter’s rights

Apr 24, 2024 | 2024 Toronto Star Property Law Columns

By Bob Aaron
Toronto Star contributing columnist

Court rarely hears cases about real estate. Prior owners of property enlarged yard by fencing in a huge piece of public parkland which they didn’t own.

The Supreme Court of Canada has agreed to hear an appeal of a case involving a claim for adverse possession, also known as squatter’s rights, of a piece of the Étienne Brûlé park which runs along the Humber river in Toronto’s west end.

The Supreme Court hears between 65 and 80 appeals a year, and grants leave to appeal only in rare circumstances such as when the case under appeal involves a question of public importance.

The Supreme Court very rarely hears cases involving real estate.

The latest dispute began when Pawel Kosicki and Megan Munro discovered they did not have paper title to a huge chunk of their back yard. The parcel in issue consists of more than 3,673 square feet. It was expropriated in 1971 and on paper it is owned by the city of Toronto.

Sometime between 1958 and 1971, the prior owners of the Kosicki house enlarged their yard by fencing in a huge piece of public parkland which they didn’t own. The land has been completely fenced in since then.

When Kosicki and Munro learned they didn’t own most of their yard, they tried to buy it but the city turned them down. The owners responded by taking the city to court claiming ownership of the yard by adverse possession.

At the court hearing, the city acknowledged that the owners’ evidence satisfied the traditional test for adverse possession. But the judge decided to create an exception to the Real Property Limitations Act statute and ruled that private landowners could not acquire title by encroaching on public land and fencing it off for their private use.

The lower court decision was upheld last June by two of three judges in the Ontario Court of Appeal.

But in a blistering dissenting opinion, Justice David Brown wrote that judges do not have the power to amend the provisions of a statute, which was the effect of the decision of the original judge and a majority of the appeal court.

Their rulings, wrote Justice Brown, “have denied (the owners) their legal due. That judicial denial raises an issue that transcends the interests of the parties to this appeal.”

By creating what he called a public lands immunity rule which is not in the wording of the legislation, Justice Brown said that his colleagues suffered from “a misconception of the power of judges to craft public policy.” The judge-made test would effectively amend four different laws.

Justice Brown wrote that judges do not have the power to enact a new law just because they think it would be a good thing to do.

In a ruling without written reasons earlier this month, the Supreme Court of Canada gave the landowners permission to appeal the Court of Appeal decision.

In deciding who owns the piece of public parkland in Toronto’s west end, the Supreme Court will decide the larger issue of whether judges have the power to craft a new exception to a statute.


Contact Bob Aaron

Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

Aaron & Aaron specialize in Real Estate Law, specifically Sale of Rental, Condominium, Residential, Rural Recreation, Offer to Lease, Commercial, and New Construction

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