The Limitations Act, 2002 (the Act), which came into force in Ontario on Jan. 1, 2004, introduced a basic 2-year limitation period that is subject to the doctrine of discoverability. The Act also introduced an ultimate limitation period of 15 years, which is not subject to discoverability and begins to run from the “day on which the act or omission on which the claim is based took place.”
The recent Superior Court of Justice decision of Tyszko v. St. Catharines (City), 2023 ONSC 2892, considers the 15-year limitation period in the context of a claim alleging ongoing property damage stemming from work performed about 20 years earlier.
In 2002, the defendant municipality installed catch basins on the roadway near the Plaintiff’s house. At that time, the house was owned by the Plaintiff’s parents.
In 2015 or 2016, when the Plaintiff started to return to the house more frequently, he noticed that water was flowing from the road toward the house and that cracks had appeared around the house, including the basement. In July 2017, shortly after he had acquired title to the house, the Plaintiff documented water running down his driveway from the road and pooling around his house.
He made complaints to the City about the issues with the drainage, but he received no response. Unbeknownst to the Plaintiff, a municipal crew attended the area in Oct. 2017 and found no issue with the catch basins. The Plaintiff retained a lawyer who wrote to the Defendant on Jan. 3, 2018, to advise that water was backing up from the street to the house during heavy rainfalls, and that this problem had occurred since the Defendant had removed ditches and installed catch basins, instead. In Feb. 2018, the Plaintiff documented new cracking at the house, which he believed was caused by the water and drainage issues.
On May 22, 2019, the Plaintiff’s lawyer wrote to the Defendant to advise that he had been retained to commence proceedings for damages to the Plaintiff’s house. The next day, on May 23, 2019, the Defendant advised the lawyer that a representative of the Defendant’s insurer would be in contact in due course. Having not heard anything further, the Plaintiff followed up with the Defendant in Jan. 2021. The Defendant formally denied the Plaintiff’s claim on March 12, 2021, and four months later, the Plaintiff commenced an action against the Defendant for damages caused by the drainage issues.
The Defendant moved for summary judgment on the basis that the action was statute-barred due to the expiry of the 15-year and two-year limitation periods. The Plaintiff argued that the limitation period began to run on March 12, 2021, when the Defendant formally denied his claim.
The 15-year limitation period
The Court rejected the Plaintiff’s argument and confirmed that the 15-year limitation period is not subject to discoverability. The ultimate 15-year limitation period, in this case, started to run on Jan. 1, 2004, when the Act came into effect; therefore, the Plaintiff’s claim was statute-barred as of Jan. 1, 2019.
The Plaintiff also argued that the 15-year limitation period should not apply, on the basis that his claim involved a “continuous act or omission,” given that every rainfall caused more damage to his house. He further argued that the Defendant had an ongoing obligation to ensure that water flowed into the catch basins, though the Court noted that no legal authorities were provided in support of this position.
Most notably, the Court held that the failure to rectify an alleged act of negligence does not create a “continuing or series of acts” of negligence. The fundamental nature of this claim was a “singular act of negligence,” namely the installation and completion of the work by the Defendant in 2002. Further, there was no pleaded or factual basis for the existence of a “continuous act or omission” or “series of acts or omissions in respect of the same obligation” to justify extending the limitation period.
The Plaintiff further argued that section 15(4)(c)(ii) of the Act ought to apply. This provision provides that the 15-year limitation period does not run when a defendant “wilfully misleads” a plaintiff as to the appropriateness of a proceeding as a means of remedying the injury, loss, or damage. The Plaintiff maintained that he was wilfully misled by the Defendant’s failure to advise him that the municipal crew did not find any issue with the catch basins in Oct. 2017, as well as the Defendant’s failure to contact him following its correspondence of May 23, 2019. The Court determined that these circumstances did not constitute misleading the Plaintiff as to the appropriateness of a proceeding. Additionally, there was no evidence that the Defendant had advised the Plaintiff to await the outcome of an investigation before commencing a claim.
Therefore, the claim was statute-barred due to the expiry of the 15-year limitation period.
The two-year limitation period
The Court further held that the action was statute-barred by the expiry of the two-year limitation period.
The Court confirmed that the doctrine of discoverability involves considering when a prospective plaintiff knows enough facts on which to base a legal allegation against a defendant. Knowledge of the full extent of one’s damages is not required. Applying these principles, the Court held that the Plaintiff was aware of the drainage issues, the damage to his property, and the appropriateness of a legal proceeding by May 22, 2019, when his lawyer threatened the Defendant with a legal proceeding. No reason was given why the Plaintiff waited more than two years later to commence an action. This action was therefore statute-barred and the claim was dismissed.
Overall, it is important to carefully consider whether there was a “singular” act of negligence on which a claim is based and when that act occurred. If the act occurred more than 15 years ago, the claim is statute-barred. The fact that there may be continuing consequences arising from that singular act is irrelevant, as far as the Act is concerned.
For more information on the ultimate limitation period in Ontario, please reach out to the authors or key contacts listed below, or any lawyer from BLG’s Municipal Liability, Insurance Claim Defence or Public Law Litigation Groups.