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Court Clarifies Nature of Continuing Cause of Action

Tyszko v St. Catharines (City), 2023 ONSC 2892 (CanLII).

Reading Time: 4 minutes  (approx.)

By: Weston McArthur

On September 12, 2002, the Defendant City of St. Catharines installed a storm sewer on the Plaintiff’s property. Later, on July 13, 2021, the Plaintiff brought an action in negligence against the Defendant, alleging that the storm sewer had been improperly installed and caused flooding every time it rained.

The Defendant brought a Motion for Summary Judgement on the basis that the Plaintiff’s claim was statute-barred pursuant to Ontario’s Limitations Act, 2002, SO 2002, c 24. The Plaintiff argued that there was a continuing cause of action – the water damage to his property that occurred due to the Defendant’s alleged negligence – which served to extend the limitation period up until the Statement of Claim was filed.

A continuing cause of action refers to multiple acts or omissions that are essentially the same and which occur one after the other continuously. At paragraph 43, Justice Bordin borrowed from a quote contained in the Ontario Superior Court of Justice’s decision in Sunset Inns Inc. v Sioux Lookout (Municipality), 2012 ONSC 437:

“To be a ‘continuing contravention’, there must be a succession or repetition of separate acts of the same character. There must be present acts of discrimination which could be considered separate contraventions of the Act, not merely one act of discrimination which may have continuing affects or consequences”.

Justice Bordin went on to clarify that a continuing cause of action does not arise from the same act or omission, and cannot be the same act or omission that simply has “continuing events or consequences” [para 43]. He also noted that “[t]he failure to rectify an alleged act of negligence does not create a continuing or series of acts of negligence” [para 44]. Lastly, just because a plaintiff attempts to characterizes damages as ongoing does not mean that the plaintiff has established a continuing cause of action for the purposes of getting around the limitation period.

In this case, Justice Bordin found that the Plaintiff marshalled no evidence showing a continuing cause of action. Because of this and other reasons, Justice Bordin ruled in favour of the Defendant for summary judgement.

Link: 2023 ONSC 2892 (CanLII) | Tyszko v St. Catharines (City) | CanLII

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