In a rare decision, the Supreme Court of Canada has granted leave to the appellants, Pawel Kosicki and Megan Munro, to appeal the decision of Ontario’s Court of Appeal, which found that certain public land cannot be adversely possessed unless a municipality expressly waives its rights to that land. The result was a fundamental change to the law of possessory title as it applies to municipal public lands. The appeal to the Supreme Court grants an opportunity to have the law on possessory title over municipal land, clarified and settled.
This case was a matter of first impression for the Court of Appeal. While it refers to several lower court cases, none of those cases involved a matter where the “traditional test” for adverse possession had been made out (meaning that the applicants were, by that test, entitled to possessory title to land), yet the court declined to make the award because of the “public nature” of the municipality’s property.
In upholding the application judge’s decision, the Court of Appeal established a new test for possessory title that essentially immunizes municipal land from possessory title claims. The majority’s decision changes decades of settled law and, as noted by the dissenting judge, results in an amendment of multiple statutes including the Real Property Limitations Act and Land Titles Act. The appellants have filed their notice of appeal to the Supreme Court of Canada.
Fasken is lead counsel to the Appellants in connection with this matter involving questions of statutory interpretation, jurisdiction of the court and legislature, property law and possessory title, with a team comprised of Sarah Turney, Daniel Richer and Jasmeen Kabuli.
Update as of July 2, 2024
Fasken has filed the appellants' materials, including a factum, in connection with this matter raising questions of statutory interpretation, jurisdiction of the court and legislature, property law and possessory title.
Jurisdiction
- Ontario
