Limitation Periods and a ‘Continuing Contravention’
The Ontario Superior Court of Justice recently released its decision in Tyszko v. St. Catharines (City), 2023 ONSC 2892. This decision addresses the 2-year and 15-year ultimate limitation periods, and clarifies what constitutes a continuing contravention/continuing cause of action.
Context
In 2002, the City of St. Catherines (the City) installed storm sewers on property owned by the plaintiff’s parents at the time. The plaintiff acquired the property from his parents in October 2017.
In 2015-2016, the plaintiff began noticing drainage problems, which were damaging the property. The plaintiff advised the City of these problems in 2018.
On July 13, 2021, the plaintiff commenced an action against the City alleging that the City’s installation of the storm sewers caused drainage issues and damage to the property. The plaintiff sought damages related to repairs, loss of enjoyment, and mental distress.
The City brought a motion for summary judgement to dismiss the plaintiff’s claim on the basis that it was statute barred by either the 2-year limitation period or the ultimate limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the Act).
Basic limitation period
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
Ultimate limitation periods
15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.
(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.
[…]
(4) The limitation period established by subsection (2) does not run during any time in which, […]
(c) the person against whom the claim is made, […]
(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.
[…]
(6) For the purposes of this section, the day an act or omission on which a claim is based takes place is,
(a) in the case of a continuous act or omission, the day on which the act or omission ceases;
(b) in the case of a series of acts or omissions in respect of the same obligation, the day on which the last act or omission in the series occurs;
(c) in the case of an act or omission in respect of a demand obligation, the first day on which there is a failure to perform the obligation, once a demand for the performance is made.
The plaintiff argued that the 2-year limitation period began running when the City formally denied his claim on March 12, 2021, and thus, his claim, issued on July 13, 2021, was not statutorily barred.
The plaintiff also argued that the 15-year ultimate limitation period did not apply. Relying on section 15(6) of the Act, the plaintiff asserted that more damage was caused to the property every time it rained, and therefore, the City’s act or omission was continuous and had not ceased.
Further, the plaintiff argued that section 15(4)(c)(ii) of the Act applied as he was wilfully misled by the City’s failure to advise that its crew did not find any issue with the catch basin on October 30, 2017, and the City’s May 23, 2019 letter indicating that a representative of the City’s insurers would be contacting the plaintiff in due course.
Decision
Justice Bordin granted the City’s motion and dismissed the plaintiff’s action, finding that the claim was statute barred by the Act. Justice Bordin found that there was no genuine issue requiring a trial on the evidence before him.
Reasons
Justice Bordin found that the claim was statute-barred by the 2-year limitation period because the facts indicated that the plaintiff discovered the claim by May 22, 2019, at the latest. As at May 2019, the plaintiff had long been aware of the drainage issues and damage to the property, he believed the damage to the property was caused by the City’s installation of the storm sewers, and he had retained a lawyer to commence proceedings. Justice Bordin rejected the plaintiff’s argument that he did not discover the claim until the City’s formal denial on March 12, 2021, noting:
[65] In my view, the plaintiff was not required to wait for the City to respond to his demands. If that were sufficient to toll a limitation period, it seems to me that no claim would be statute barred so long as a would-be plaintiff demanded that a would-be defendant respond to the plaintiff’s demands and compensate the plaintiff and the demand remained outstanding. Such an outcome would defeat the purpose and intent of the Limitations Act.
Justice Bordin did not agree with the plaintiff’s assertion that the City’s act or omission was continuous and had not ceased. Justice Bordin described the act as “a single alleged breach with allegedly continuing consequences” and clarified that “failure to rectify a [single] alleged act of negligence does not create a continuing or series of acts of negligence.” Thus, the ultimate limitation period began to run when the storm sewers were installed in 2002, and expired on September 12, 2017 before the plaintiff commenced the action.
Lastly, Justice Bordin rejected the plaintiff’s argument that section 15(4)(c)(ii) of the Act applied because there was no evidence that the City undertook to conduct an investigation of the cause of the drainage problems before the claim was issued or of the City telling the plaintiff he should await the outcome of such an investigation before commencing the action.
Takeaways
This decision affirms that parties contemplating litigation must remain cognizant of timelines and the limitation periods for initiating claims. Further, parties should be wary of assuming a limitation period is tolled and instead have an agreement in place to that effect, in order to prevent disputes on whether or not the limitation period was missed.