Your claim may be "statute-barred" if it falls outside of the limitation periods within your jurisdiction. The Limitations Act, 2002 sets out two main limitation periods for claims commenced in Ontario: (1) a general 2-year limitation period, beginning when the claim was discovered and (2) an ultimate 15-year limitation period, regardless when the claim was discovered.

These limitation periods were both considered by Tyszko v St. Catherines (City), a recent decision from the Superior Court of Justice. This case mainly addressed the following question: does a claim for ongoing property damage resulting from work completed nearly twenty years earlier fall outside the ultimate 15-year limitation period?

The Facts

This decision centered around a motion for summary judgment commenced by the plaintiff, Mr. Tyszko, against the City of St. Catherines for damage resulting from work they completed near the plaintiff's property.

On September 12, 2002, the City installed new storm sewers at the plaintiff's property. Since then, whenever it rains, water flooded the property instead of draining onto the road. In 2021, the plaintiff sought compensation for repairs made to the property, loss of enjoyment of the property, and his mental distress caused by the claim.

In 2015 and 2016, the plaintiff began to notice that rain would come toward his parents' house instead of onto the street and that cracks were appearing in the basement and around the house. When the plaintiff acquired title to the property in October 2017, he immediately complained to the City about the drainage problem.

After getting nowhere with the City, the plaintiff retained a lawyer, who wrote to the City in January, April, and May 2018. In May 2019, the lawyer wrote again, threatening legal action. The City did not respond until the plaintiff's lawyer followed up in January 2021. An adjuster for the City then investigated the plaintiff's claim and rejected it on March 12, 2021. The plaintiff finally commenced his statement of claim on July 13, 2021.

The City argued that the claim was statute-barred by the ultimate 15-year limitation period or, alternatively, the general 2-year limitation period. The plaintiff disputed these arguments. He held that the 15-year limitation period did not apply as the damage was ongoing; moreover, as he did not know that a legal proceeding was the appropriate remedy until the City denied his claim in March 2021, his claim fell within the general 2-year limitation period.

Justice M. Bordin accepted the City's argument; the claim was barred under both limitation periods.

The Ultimate Limitation Period

Subsection 15(2) of the Act states that "[n]o 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."1 This 15-year limitation period applies even if the claim remains undiscovered for the entirety of the fifteen years.2

Under subsection 24(5) of the Act, if an act or omission took place before the Act came into effect on January 1, 2004, and if the claim was not discovered at that time, then the Act applies as if the act or omission had taken place when the Act came into effect.3 This would apply here: the City's alleged negligent act occurred in 2002 and was not discovered until well after 2004. As a result, the 15-year limitation period for this act would have expired on January 1, 2019, over two years before the claim was commenced.4

Do the Exceptions under Subsection 15(6) of the Act Apply?

Subsection 15(6) of the Act provides some exceptions to the ultimate limitation period if (a) there is a continuous act or omission, (b) a series of acts or omissions in respect of the same obligation, or (c) an act or omission in respect of a demand obligation. For (a) and (b), the date of the claim is the last time the act or omission occurs.5

The plaintiff argued that this claim involved a continuous action under subsection 15(6)(a), as the damage worsened every time it rained. Alternatively, the claim was a result of a series of acts or omissions in respect of the same obligation under subsection 15(6)(b), as the City had an ongoing obligation to ensure that water flowed onto the road and not adjoining properties.6 Justice Bordin rejected both of these arguments.

A "continuous cause of action" was defined in Sunset Inns v Sioux Lookout (Municipality) as a cause of action which arises from a repetition of the same acts or omissions which the action sought to address.7 Justice Bordin found that a failure to rectify an alleged act of negligence is not the same as a series of acts of negligence.8 The City's only alleged act of negligence was the work completed in 2002 and a single breach with continuing consequences does not fall under s. 15(6)(a).

As discussed in a previous blog, courts have recognized "rolling limitation periods" in the context of breaches of contractual obligations, as discussed in s. 15(6)(b). In these cases, the limitation period resets every time the defendant breaches one of their obligations. However, the plaintiff failed to provide any legal authorities for an obligation owed by the City.9

Do the Exceptions under Subsection 15(4) of the Act Apply?

Subsection 15(4) of the Act states that that ultimate limitation period does not run when (a) the person with the claim is incapable of commencing a proceeding due to their physical, mental, or psychological condition; (b) the person is a minor, or (c) the defendant wilfully conceals the claim or misleads the plaintiff about it.10

The plaintiff claimed under s. 15(4)(c)(ii) that the City misled him when their insurers failed to contact him. However, Justice Bordin found no evidence that the City instructed the plaintiff to hold off on commencing legal proceedings until they heard from the City's insurers or the City conducted an investigation.11 There was nothing preventing the plaintiff from commencing a legal proceeding while waiting to hear from the City before the ultimate limitation period ended.

The General Limitation Period

Section 4 of the Act states that "a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered."12 Section 5(1) of the Act describes when a claim is '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).13

A claim is "discovered" and the limitation period is triggered when a plaintiff has sufficient knowledge - that is more than suspicion and less than perfect - that the defendant's act or omission contributed to or caused their loss.14 A plaintiff does not need comprehensive knowledge or know the extent of the damages caused by the claim.15

Here, the plaintiff had enough knowledge of his damages to make the claim by May 2018 and knew that legal proceedings were an appropriate means to seek a remedy by the time of his lawyer's letter to the City on May 22, 2019.16

Justice Bordin also rejected the plaintiff's assertion under s. 5(1)(iv) of the Act that he did not know that a legal proceeding was an appropriate remedy until the City's rejection of his claim on March 12, 2021. The plaintiff was not required to wait for the City to respond to his demands, there was no alternative means of compensation underway at the time, and the plaintiff could not explain why he waited two years for a response from the City before commencing proceedings.17

Conclusions

This case serves as a warnings to plaintiffs to be aware of any relevant limitation periods when commencing an action. Namely:

  • If the act or omission resulting in your claim occurred more than fifteen years ago, then the claim is statute-barred, regardless of whether the consequences from the Act have continued.
  • The continuing consequences of a single act of negligence is different than continuing acts of negligence, which can constitute an exception to the ultimate 15-year limitation period under s. 15(6)(a) of the Act.
  • Waiting for a response from the defendant without a concrete alternative means of compensation is not sufficient to engage s. 5(1)(a) of the Act and delay your discovery of when a legal proceeding is the appropriate remedy.

Footnotes

1 SO 2002, c 24, Sched B, s 15(2) [LA].

2 See York Condominium Corporation No. 382, 2007 ONCA 49 at para 5 and Mega International Commercial Bank (Canada) v Yung, 2018 ONCA 429 at para 69.

3 LA, supra note 1, s 24(5).

4 Tyszko v St. Catherines (City), 2023 ONSC 2892 at para 37 [Tyszko].

5 LA, supra note 1, s 15(6).

6 Tyszko, supra note 4 at paras 40-42.

7 2012 ONSC 437 at paras 20-24.

8 Tyszko, supra note 4 at para 44.

9 Ibid at para 42.

10 LA, supra note 1, s 15(4).

11 Tyszko, supra note 4 at para 49.

12 LA, supra note 1, s 4.

13 Ibid, s 5(1).

14 Zeppa v Woodbridge Heating & Air-Conditioning Ltd, 2019 ONCA 47 at para 41.

15 Taylor v David, 2021 ONSC 3264 at paras 16-17.

16 Tyszko, supra note 4 at para 57.

17 Ibid at paras 60-65.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.