When the Clock Keeps Resetting: Limitations and Continuing Nuisance in Karagan v. Seemann
When a claim arrives more than a decade late, a motion to dismiss based on the limitation period’s expiry can look like a clean route to resolution. The decision in Karagan v. Seemann, 2026 ONSC 5278, shows why that path may be less clear when the claim is framed in nuisance. On a motion to dismiss, the respondent persuaded the court that the applicant had discovered his claim well outside the two-year limitation period, yet much of the claim survived anyway.
Background
Two neighbouring cottage properties were at the centre of a drainage dispute. In 2012, part of the respondent’s cottage was regraded. Water that had previously pooled on the respondent’s side was redirected through a culvert onto the applicant’s neighbouring property, which became wet, marshy and difficult to traverse.
The applicant bought the neighbouring property in 2018. In May 2024 he obtained a drainage expert’s report linking the regrading to the runoff. He issued an application a four months later on September 23, 2024, seeking damages in nuisance and a mandatory order requiring the respondent to do corrective work. The parties agreed to decide the limitation issue first, by way of motion.
The claim was commenced too late
Section 5(2) of the Limitations Act, 2002, creates a rebuttable presumption that a claimant knew of their claim on the day in which the act complained of took place. Justice Tysick found that the presumption did not apply in this case. The original act took place in 2012 when the respondent’s property was regraded. The previous owner of the applicant’s property had noticed his land getting wetter but was never told about the regrading. The evidence also suggested that the respondent had not told the most affected owners about the regrading, and possibly concealed this information deliberately.
That finding did not save the applicant. Once a limitations defence is raised, the claimant must prove that the claim was discovered within the limitation period. Here, that meant on or after September 23, 2022 (two years prior to the issuance of the application).
The applicant’s own evidence worked against him. He testified in his cross-examination that he had had “numerous discussions” with the respondent about the redirected water since buying the property in 2018. He also said he knew the water came from work on the respondent’s land from conversations with neighbours but did not give dates for when those conversations took place. His expert’s report began by describing the applicant’s existing allegation that the drainage had been modified. In other words, the applicant already believed what the report later confirmed.
The court found that the applicant likely knew the material facts shortly after buying the property in 2018. In the alternative, the court found that a reasonably diligent owner would have learned them before September 2022, since neighbours knew the history. Getting an expert report in 2024 did not postpone discovery of the claim.
Nuisance is a continuing tort
Despite being out of time, the applicant’s fallback argument succeeded.
The respondent relied on Chaudière Machine and Foundry Co. v. Canada Atlantic Railway (1902), 33 S.C.R. 11. In that case, flooding caused by a railway embankment did not give rise to a fresh cause of action each spring.
The court in this case distinguished Chaudière because the embankment in that case was alleged to have been builtunlawfully, so the construction itself was the actionable wrong. By contrast, the regrading in the present case was a lawful act. The wrong is the ongoing, unreasonable interference with the neighbour’s land, not ongoing unreasonable conduct of the respondent.
The court instead followed Roberts v. City of Portage la Prairie, [1971] S.C.R. 481, a sewage lagoon case. Under Roberts, a nuisance continues for as long as the defendant allows the condition causing it to remain on their land.
Justice Tysick distinguished the respondent’s other authorities, including Huether v. Sharpe, 2025 ONCA 140, and Tyszko v. St. Catharines (City), 2023 ONSC 2892, which were negligence cases. In these cases, the court held that negligence is a single act with lingering effects, not a continuing wrong. Nuisance was not pleaded in Tyszko, unlike in the present case.
The result
The court held that damages sustained prior to two years before the application are statute-barred. However, damages sustained within the two years of the application’s issuance, and the claim for a mandatory order requiring corrective work, were allowed to proceed.
Takeaways
In nuisance, a limitations defence may cap damages rather than end the claim. When a plaintiff’s property is unreasonably interfered with, each new interference can give rise to a new cause of action. Huether and Tyszko offer strong protection against “continuing negligence” arguments, but that protection may not guard against properly pleaded nuisance claims. Notably, it was the lawfulness of the original regrading, usually a helpful fact for the defence, that made the nuisance a continuing one.
In files involving grading, drainage or similar site conditions, parties may want to consider early whether nuisance is pleaded or could be added. Valuation of the file may vary on the basis that a limitations win may narrow the case without disposing of it, including exposure to an order for corrective work, which may survive in full.