Simon's Megalomaniacal Legal Resources

Limitations - Continuing Cause-of-Action

. Canadian National Railway Company v. Kitchener (City)

In Canadian National Railway Company v. Kitchener (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against "an order granting partial summary judgment in favour of the respondent, Hogg Fuel & Supply Limited (“Hogg”), dismissing CN’s claims relating to coal tar contamination on its property".

The court considers 'continuing tort causes of action':

[21] Continuing torts are those in which a defendant’s impugned acts continue, causing the plaintiff damages. However, as Hourigan J.A. explained in Albert Bloom Limited v. London Transit Commission, 2021 ONCA 74, 40 C.E.L.R. (4th) 161, at para. 50, for a claim to be continuing the conduct causing the legal injury and “the legal injury itself must continue, not merely the ill effect of the prior legal injury”.

[22] As CN points out, continuing torts do generally give rise to a new cause of action each day the tort continues. ....

....

[25] In support of this argument CN relies on the British Columbia Court of Appeal decision in Zhang v. Davies, 2021 BCCA 196, 50 B.C.L.R. (6th) 1 where the court held that if future harm for a continuing nuisance is addressed in a prior action, the cause of action is exhausted. In that case, the appellant claimed her neighbours’ roof reflected sunlight into her house causing a glare. She was awarded damages for interference with the enjoyment of her property, but was denied an injunction. The Court of Appeal held that she could not bring a second action which claimed the glare continued, because the issue of continuing harm had already been decided. At paras. 8-9, the court explained how the appellant’s continuing nuisance claim was exhausted by the first action:

The judge accepted the continuing cause of action can be, as she put it, exhausted by earlier litigation. Whether that has occurred depended on an examination of the earlier claim decision and award. I do not think that the proposition that a continuing nuisance can be exhausted, in the sense that a remedy can take into account and compensate for future harm bringing to an end the right to sue on the continuing harm, is contested or in doubt.

The judge reasoned, correctly in my view, that an interference may constitute a continuing nuisance, but not merit an injunction. Equally, a damage award may compensate for continuing harm. As she explained:

The absence of an order enjoining a nuisance is not telling in and of itself. However, where an injunction was sought and denied, it can be concluded that the issue of future harm was raised before the court as an issue. Thus, it may be more readily inferred that a damages award included damages in lieu of an injunction, where an injunction was expressly sought. However, it may also be evident from the reasons or order in the earlier litigation that the damages included an award for future harm.

Where it can be concluded that the damages awarded included damages for future harm, the cause of action is exhausted and the nuisance’s continuation has, in the words of Justice Bull, been effectively “licenced”. Where future harm was addressed in a prior claim, the eventual occurrence of that harm cannot found a “separate and distinct” cause of action; to conclude otherwise would enable a plaintiff to sue for the same compensation twice.

[26] Even if I were to consider Zhang as persuasive authority, I fail to see how CN’s continuing coal tar contamination claims were not exhausted even though they were dismissed for delay rather than on the merits. I acknowledge that Zhang is distinguishable in that the first action in that case was not dismissed for delay but resolved after a trial. However, that does not necessarily mean the 1989 Action in our case was not exhausted upon its dismissal, whatever the basis for doing so.

[27] In my view, CN is essentially asking for an exception to the abuse of process doctrine such that claims dismissed for delay are treated differently than those decided on the merits. There is no principled reason to create such a carve out. In fact, to do so would undermine many of the principles underlying the doctrine, such as judicial economy, consistency, finality, and the integrity of the administration of justice.

[28] I agree with Hogg’s submission that to accept CN’s argument on this point would be to invite courts to rehear a claim it has already dismissed and allow a plaintiff to perpetually renew a claim alleging a continuing tort until it has been decided in their favour. It would also result in inconsistency if a plaintiff were successful in a second action on a claim that had already been dismissed, which would also be an affront to the principle of finality. Lastly, it would undermine the integrity of the administration of justice by discouraging a defendant from moving to dismiss a lingering action for delay and reward a plaintiff who sleeps on their rights by permitting them to bring a second action.

[29] CN’s argument that exhaustion requires a decision on the merits also fails to recognize the flexibility of the abuse of process doctrine, which is unencumbered by the specific requirements of concepts like issue estoppel, which does require a final judicial decision to preclude relitigation of previously decided issues: see Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 19, rev’d on other grounds, 2002 SCC 63, [2002] 3 S.C.R. 307.

[30] In sum, the motion judge did not err in his treatment of CN’s continuing tort claim. He acknowledged that continuing torts give rise to new causes of action when the conduct causing the legal injury, and the legal injury itself, are continuing, but also recognized that continuing torts are not shielded from the abuse of process doctrine. As the continuing tort claims were exhausted in the 1989 Action, the subsequent 2014 Action in respect of the same claims is an abuse of process.

. Miranda v. Balita Media Inc.

In Miranda v. Balita Media Inc. (Ont CA, 2026) the Ontario Court of Appeal (mostly) dismissed a newspaper defendent's defamation appeal, here where the trial judge "allowed the action and awarded general damages of $150,000 and punitive damages of $100,000, together with costs", and a permanent expressive injunction.

Here the court considers the appellant's argument that the admission of evidence regarding limitation statute-barred events was an error of law:

[14] First, the appellants submit that the trial judge made an error of law when he relied on statute-barred publications to find that the appellants had engaged in a defamatory “campaign” against Ms. Miranda.

[15] In his reasons, the trial judge made references to Balita Newspaper’s “campaign” against Ms. Miranda and stated that it began with a February, 2020 report (the first of the 2020 articles referred to above).

[16] The appellants submit that, notwithstanding the finding that the 2020 articles were not actionable, the description of the conduct of the appellants as a continuing “campaign” incorporated by reference the 2020 articles, with the result that the finding of liability was based on the “campaign” as a whole, and was not limited to the 2022 articles that were not statute-barred. They further submit that the quantum of damages awarded was inflated by the trial judge’s improper consideration of the 2020 publications.

[17] We reject this ground of appeal.

[18] The trial judge expressly stated at paragraph 57 of his reasons that, to the extent that the court was provided evidence of the 2020 publications, they were admitted for background and context only and do not separately attract liability. He recognized and acknowledged that the 2020 publications were not actionable because of the statutory limitations.

[19] While the reasons do reference the actions of the appellants as a “campaign” directed at Ms. Miranda, we are satisfied that a fair reading of the reasons as a whole make it clear that the trial judge placed no reliance on the 2020 articles to find liability. Even excluding those articles, his description of the actions as a “campaign” was open to him on the evidence. We see no error of law on this ground of appeal.

. Saltat v Correia and others

In Saltat v Correia and others (Ont Div Ct, 2026) the Ontario Divisional Court considers a limitations issue of 'continuing cause-of-action', here in an administrative context:

[3] The applicant has been off work since 2019. In 2024, the applicant filed an application at the HRTO alleging discrimination in the course of employment on the grounds of disability and due to her association with a person identified by another ground. In response to the application, the HRTO requested that the applicant provide additional submissions on jurisdictional issues. Specifically, the HRTO noted that it appeared that the application was filed more than one year after the last alleged incident of discrimination and there did not appear to be facts showing good faith for an extension of time, as required by s. 34 of the Human Rights Code. Further, the applicant had not explained the factual basis for her belief that the respondents’ conduct was linked to the Code grounds that had been advanced.

[4] After a review of the materials submitted, the HRTO dismissed the application. The claim against Sunnybrook was dismissed due to delay. It was based upon events that took place before the applicant did not return to work in 2019. Those events were more than four years before the application, well beyond the one-year time requirement in s. 34(1) of the Code. As set out in the Decision, the HRTO considered whether to accept a late application under s. 34(2) of the Code, correctly noting that the Tribunal had to be satisfied that the delay was incurred in good faith and no substantial prejudice would result.

....

[22] The applicant further submits that there was a continuing contravention so the one-year time period does not apply. She submits that the discrimination that she experienced throughout her time at work at Sunnybrook and through the entire later process of her insurance applications, grievance process and other steps taken after she did not return to work meet the test for a continuing contravention. This submission overlooks the difference between the events here and a succession or repetition of discrete acts of discrimination of the same character. The last date of alleged discrimination at work at Sunnybrook was in 2019. The subsequent events do not amount to discrete acts of discrimination of the same character resulting in a continuing contravention.

. Albert Bloom Limited v. London Transit Commission

In Albert Bloom Limited v. London Transit Commission (Ont CA, 2021) the Court of Appeal considered when a tort is considered continuing for purposes of a limitation period:

[50] ... As Epstein J., as she then was, explained in Starline Entertainment Centre Inc. v. Ciccarelli, (1995) 1995 CanLII 7132 (ON SC), 25 O.R. (3d) 765 (S.C), at p. 31, “a continuing tort does not include continuance of all the effects or repercussions of the defendant’s conduct. It has been explained as ‘the continuance of the act which caused the damage.’” For a claim to be “continuing”, the legal injury itself must continue, not merely the ill effect of the prior legal injury: RVB Managements Ltd. v. Rocky Mountain House (Town), 2015 ABCA 188, 19 Alta. L.R. (6th) 195, at para. 18.