Time’s Up: Ontario Court Of Appeal Clarifies That If A Continuing Tort Claim Is Dismissed For Delay, The New Damages May Not Give Rise To A New Cause Of Action

In Canadian National Railway Company v Kitchener (City), 2026 ONCA 257, the Ontario Court of Appeal addressed the abuse of process doctrine where a claim based on a continuing tort had been dismissed for delay, and a second claim was later brought against the same defendants based on the same facts. The Court dismissed the appeal, upholding a partial summary judgment dismissing the plaintiff’s claims for coal tar contamination. The Court also observed that in this context, dismissal for delay is no different from dismissal on the merits.

Background: In 1989, Canadian National Railway Company (“CN”) brought a claim against Hogg Fuel & Supply Limited (“Hogg”) and others. CN alleged that its property had become contaminated with coal tar waste that migrated from Hogg’s property.¹ CN apparently did little to prosecute the action over the ensuing years, and in 2014, the claim was dismissed for delay by Myers J. In 2015, the Ontario Court of Appeal dismissed CN’s appeal, and the Supreme Court of Canada subsequently dismissed CN’s application for leave to appeal.

In 2014, while its appeal to the Court of Appeal was pending, CN commenced a separate action against Hogg seeking damages for effectively the same coal tar contamination described in the 1989 action.²

Hogg moved for partial summary judgment on the basis that CN’s attempt to re-litigate the coal tar contamination claims through the 2014 action constituted an abuse of process. CN argued that the new claim was distinct since it concerned only damages incurred since 2012, and that since the tort was continuing, the second claim was not an abuse of process.³

The Motion Judge’s Decision: The motion judge granted partial summary judgment and dismissed CN’s claims for coal tar contamination (other claims by CN against Hogg were allowed to proceed).⁴ The motion judge stated that the doctrine of abuse of process is, in part, meant to ensure the administration of justice is not brought into disrepute, and that allowing the coal tar contamination claims to proceed would offend that principle and render the original dismissal in 2014 meaningless.⁵

The motion judge rejected CN’s the argument that its new claim was based on a distinct, continuing tort, because the delays created unfairness that persisted in the new claim.⁶ For example, Hogg had grounds for a crossclaim against the City of Kitchener who it argued was ultimately responsible for any damages. The judge who dismissed the 1989 action, Myers J., found that such a crossclaim could no longer be tried fairly due to CN’s delay; the change to a new time period in the 2014 action did not resolve that unfairness.⁷

The motion judge also rejected the argument that since the tort was “continuing”, the second claim was not an abuse of process, finding that Myers J. contemplated the continuing nature of the tort and still held that the delay would make a trial unfair.⁸

CN appealed the motion judge’s decision to the Ontario Court of Appeal.

The Ontario Court of Appeal’s Decision: The Ontario Court of Appeal dismissed CN’s appeal. The Court found that the motion judge applied the law correctly, and that since the 1989 action had itself alleged a continuing tort, the dismissal of that action for delay applied to any future claim arising out of that same tort.⁹ The Court endorsed the motion judge’s rationale for finding that basing the new claim on a new time period of damages was insufficient to address the abuse of process issue.¹⁰

The court also refused to make an exception to the application of the abuse of process doctrine, stating that the doctrine treats dismissals on the merits and dismissals due to delay as the same.¹¹

Key Takeaways:

• Where a claim is dismissed for delay, a plaintiff may be precluded from bringing a subsequent action based on the same alleged misconduct, even where the plaintiff continues to suffer new damages from a continuing tort. .
• Lengthy delays caused or contributed to by plaintiffs may result in the dismissal of an action for delay. In Ontario, civil claims are required to be set down for trial by the fifth anniversary of the date the claim was commenced. In this case, the 1989 action had been extant for twenty-five years, and many of the anticipated witnesses had died. The Court found that CN was the “author of its own misfortune” in this case.
• Dismissal of an action for delay is treated the same, for abuse of process purposes, as dismissal on the merits.

Footnotes

1. Canadian National Railway Company v Kitchener (City), 2026 ONCA 257 at para 2.

2. Ibid at paras 4-7.

3. Ibid at paras 12 and 20.

4. First Instance Decision at paras 3-4.

5. First Instance Decision at para 29.

6. Ibid at paras 44 and 50.

7. Ibid at paras 44 and 47.

8. Ibid at para 44.

9. Canadian National Railway Company v Kitchener (City), 2026 ONCA 257 at para 30.

10. Ibid at paras 31-33.

11. Ibid at para 27.