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| Ray Mikkola |
Where a statute sets out a clear indication as to which properties are immune from such a claim, no court is entitled to add to the list of those properties. The decision put an end to the comparatively recent legal theory, as confirmed by trial decisions, and as modified by the Court of Appeal in Kosicki, of a “public benefit test,” the application of which deprived Kosicki of what otherwise would have qualified as a successful claim for adverse possession. The property that was the subject of the claim by
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It seems to me that the decision does not invite an “open season” for adverse possession claimants to obtain title to municipal parkland. A claimant must still satisfy all of the same requirements to succeed in an adverse possession claim as would be required for any other property. There is no longer an additional public benefit test, as had been confirmed and modified by the Court of Appeal, in order for a claimant to be successful where land is held for the benefit of the public, as in the case of a municipally owned park.
The public benefit test had been created by lower courts, which had determined that where land was being held for the benefit of the public, and where actual use by the public could be shown, then a claimant would not be successful on a claim for adverse possession. The Court of Appeal in Kosicki had approved a modification to the test by holding that even where actual use by the public could not be shown, the claim should nevertheless fail unless the municipality had waived its presumptive rights to the land or otherwise acknowledged or acquiesced to its use by the claimant. This new aspect of the test was necessary for the municipality to defend the claim by reason that the fence made it impossible for the public to actually use the land.
The court left no doubt that the public benefit test had no legal effect. The court took aim at the “unsettled foundations” of the test, noting that where the test had been considered, the matter generally fell on other grounds in any event. The court criticized the requirement to show a municipal acknowledgement or acquiescence by the claimant of the lands adversely possessed, noting that one could not legally adversely possess with permission. With respect to the Court of Appeal’s position that the test did not provide an immunity for municipal parkland but merely created a rebuttable presumption, the court found that such a distinction was not materially different from an outright immunity.
The court did not consider how or whether the test would apply to non-parkland property held by a municipality for a public benefit. Such other properties could include stormwater management ponds, city-owned parking lots for employees and visitors to city hall, or any other lands owned by a municipality. In any event, it is at least arguable that all land owned by a municipality is held for some public purpose.
The following paragraph (83) from the majority decision succinctly summarizes the effect of the ruling:
“Given the statutory scheme and existing common law described above, the application judge’s recognition of a novel retroactive blanket immunity in favour of municipal parkland had the effect of undermining legislative intent. Despite the majority of the Court of Appeal’s attempt to frame its decision in a different light, by characterizing the public benefit test as a rebuttable presumption (at para. 62), I conclude that it also improperly resorted to expanding the common law where the legislature, having turned its mind to those public lands that would be exempt from the operation of the RPLA, clearly intended to preserve matured possessory claims. As this Court stated in Zeitel v. Ellscheid, [1994] 2 S.C.R. 142, a case also involving a claim to possessory title, ‘[i]t is beyond the power of a court to interfere in a carefully crafted legislative scheme merely because it does not approve of the result produced by a statute in a particular case’ (p. 152). Recognizing a novel common law immunity for municipal parkland from matured possessory claims cannot be reconciled with the relevant statutory scheme.”
Municipalities might take comfort from the fact that the decision may have limited impact since most public and privately held land in the province is now held in the Land Titles system, in which no claim for adverse possession is legally possible (in the case of Land Titles Absolute or Land Titles Absolute Plus) or is only legally possible if a claim is proven to have matured prior to the registration of the land as Land Titles Conversion Qualified (LTCQ). It is therefore unlikely that any private landowner, emboldened by the decision of the court, who now proceeds to fence off part of a park for his own use, could be successful in a claim for adverse possession.
There may, of course, be other similar cases involving long-standing encroachments on parkland that may have blossomed into fully crystallized adverse possession claims prior to conversion to LTCQ. Municipalities are generally much less familiar with the history of such possession than the owner who benefits from such possession, given that a municipality may own perhaps hundreds of acres of parkland. A claimant can, of course, claim possession through prior owners, provided that the evidence of such possession is available and stands up to scrutiny. This is a valid concern for municipalities to be sure.
To address this concern, it is possible that the RPLA may be amended to add municipally owned parkland to the list of properties that are immune from claims based on adverse possession. Any such amendment should likely include other lands, such as stormwater management ponds, for example, in addition to parkland. Or perhaps all municipally owned land should be stipulated to be exempt from such claims, as is the case in Alberta, according to the court.
A key consideration for any such statutory amendment should be the issue of a retroactivity. The court in Kosicki was clearly troubled by the retrospective application of the test, which removed what the trial court plainly found was an established claim for adverse possession of several decades’ duration. The protection of matured possessory title is reflected even in statutes such as the RPLA that create immunity. It bears emphasizing that even if municipal parkland were now included in the list of properties that enjoy immunity under the RPLA, Kosicki would have been successful if matured possessory claims were excluded from such statutory immunity.
Ray Mikkola is a partner with the firm of Pallett Valo LLP.
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