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Continuing Cause of Action Principles: Unique Circumstances for Delay to Triggering of Limitation Period
Question: How does the concept of a continuing cause of action affect limitation periods in tort claims?
Answer: A continuing cause of action allows limitation periods to reset with each instance of repeated harmful conduct, meaning you have more time to pursue your claim. This principle can ensure you protect your rights even in complicated situations.
With Some Issues the Limitations Clock May Be Held From Ticking
With certain types of tort claims, the cause of action may accrue or roll over. For example, in a trespass claim, such as where a neighbour has parked an automobile on the property of a potential Plaintiff, the cause of action accrues each instant moment during which the automobile remains in trespass. The cause of action is continually reborn, until the trespass ends at which time the limitation period will begin. Until the trespass ends, the limitation clock is constantly reset, like a stopwatch clock with a glitch where for every split second tick forward, a reset to zero instantly occurs. Similarly, where a cause of action involves a continuous course of conduct or series of acts, the cause of action accrues and the limitation period begins upon the final act rather than the first. Accordingly, each individual but related incident becomes part of a collective incident whereby the right of action for all involved incidents expires only when the limitation period has passed when calculated from the final act. The continuing cause of action was defined in the case of Hole v. Chard Union, [1884] 1 Ch. 293 at p. 296 as "a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought." Although this issue is relatively uncommon, there are a number of cases that address the issue, while citing Hole, including:
[37] The concept of a “continuing cause of action” is a long-standing principle of procedural and limitations law in Ontario as well as other common law jurisdictions.[5]
[38] Section 117 of the Courts of Justice Act, R.S.O. 1990, c. C-43 entitles the court to assess damages with respect to a continuing cause of action that arises between the commencement of the action and trial. The predecessors of s. 117 have been in force in Ontario since at least 1919 and the concept of a continuing cause of action dates to the 19th century: Hamilton v. Quaker Oats Co. (1919), 46 O.L.R. 309 (H.C.) at para. 10; Hole v. Chard Union, [1894] 1 Ch. 293, at pp. 295-96. Equivalent provisions exist in procedural and limitation statutes in a number of other provinces: see e.g., Alberta Rules of Court, Alta. Reg. 124/2010, r. 9.9; Limitations Act, R.S.A. 2000, c. L-12, s. 3(3)(a); and Limitations of Actions Act, S.N.S. 2014, c. 35, s. 8(3)(a). The interpretation of these various provisions has generated a considerable body of law defining a “continuous cause of action”.
[39] In essence, the term is used to describe causes of action that accrue from repeating actionable conduct. Because each repetition of the actionable conduct is identical and occurs continuously, it founds a new and discrete cause of action.
[40] This understanding of the concept of a “continuing cause of action” was adopted by this court in its 1924 decision in McIntosh v. Parent (1924), 1924 CanLII 401 (ON CA), 55 O.L.R. 552 (C.A.), at p. 424, quoting the 1894 English Court of Chancery decision in Chard Union, at pp. 295-96:
[W]hat is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought… If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem [from day to day].
[41] Nuisance and trespass are the most common examples of continuing causes of action, since each day the nuisance or trespass occurs a new and identical cause of action in nuisance or trespass accrues: see e.g., Smart v. South Saskatchewan Hospital Centre, 1989 CanLII 4801 (SK CA), 60 D.L.R. (4th) 8 (Sask. C.A.), at para. 46.[6] In such cases, “[the] injury is said to be a continuing one so long as it is still in the course of being committed and is not wholly past”: Roberts v. City of Portage La Prairie, 1971 CanLII 128 (SCC), [1971] S.C.R. 481, at p. 491, quoting Salmond on Torts, 15th ed., at p. 791.
[42] Continuing causes of action are uncommon. In Jalla & Ors v. Shell International Trading and Shipping Company & Anor, [2021] EWCA Civ 63, at paras. 52-53, the England and Wales Court of Appeal (Civil Division) observed that a cause of action in tort “is usually a single, self-contained package of rights, relating to an act or omission which has caused damage and is actionable in law” while “[a] continuing cause of action is more unusual.”
[43] Thus, actionable conduct is not continuing merely because it can be rectified or because the harm it causes is either continuing or delayed. This principle is illustrated by Sunset Inns Inc. v. Sioux Lookout (Municipality), 2012 ONSC 437, aff’d 2012 ONCA 416, where the defendant municipality installed a sewer line to the plaintiff’s building in 1986. There were ongoing problems with flow in the sewer line, which eventually led the plaintiff to commence a proceeding alleging that the municipality installed the line negligently. The defendant municipality brought a motion for summary judgement on the basis that the claim was statute barred, which the plaintiff resisted by arguing, inter alia, that the municipality was under an ongoing duty to repair the deficient sewer line and, therefore, the negligence was a “continuous cause of action”.
[44] In a judgment upheld on appeal to this court, the plaintiff’s argument was rejected on the basis that a continuous act or omission requires a succession or repetition of separate acts of the same character. The allegation that the defendant was under an ongoing duty of care to the plaintiff “does not constitute the type of repetitive and continuing conduct which is the foundation of the continuing cause of action”: Sunset Inns, at para. 22.
[45] Similarly, in Bowes v. Edmonton (City of), 2007 ABCA 347, 86 Alta. L.R. (4th) 47, a riverbank collapse destroyed the plaintiffs’ homes 12 years after their construction. The plaintiff sued the defendant municipality for negligence, alleging a breach of its duty to warn against construction on the riverbank and arguing that the breach was continuous. The Alberta Court of Appeal rejected this argument, reasoning that any alleged negligence had occurred by the time the buildings were constructed and “absolutely nothing happened” thereafter: at para. 169. The court pointed out that “[t]o regard every ancient failure to warn as occurring every day would be a fiction destroying all limitation periods… [since] most cases of delayed harm from a tort could be dressed up as failures to warn, with no limitation period”: at paras. 173-174.
[36] What is called a “continuing cause of action” is “a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought”: Hole v. Chard Union, [1894] Ch. 293 (C.A.), at p. 295, per Lindley, L.J.; applied in Sunset Inns Inc. v. Sioux Lookout (Municipality), 2012 ONSC 437; and Tyszko v. St. Catharines (City), 2023 ONSC 2892, at para. 43. To be a continuing cause of action, there must be a succession or repetition of acts of the same character, but each must constitute separate causes of action. It is not enough that there be one act that has continuing effects or consequences: Manitoba v. Manitoba (Human Rights Commission) (1983), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 (C.A.), at para. 19.
[101] In Starline Entertainment Centre Inc. v. Ciccareli[27] Epstein J. (as she then was) described a continuing cause of action as follows:
82 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”: see Ihnat v. Jenkins, 1972 CanLII 675 (ON CA), [1972] 3 O.R. 629, 29 D.L.R. (3d) 137 (C.A.); Freeborn v. Leeming, [1926] 1 K.B. 160 (C.A.); and Carey v. Bermondsey (London Borough Council), (1903), 67 J.P. 447 (C.A.).
83 What then is a “continuing cause of action”? It was described in Hole v. Chard Union, [1894] 1 Ch. 293 (C.A.) at pp. 295-296, as:
…a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.
84 In that case, the defendants had polluted a stream by pouring in sewage and refuse. It was held that this was nuisance, and a continuing cause of action. At p. 296, A. L. Smith L.J. stated:
[The series of acts] were repeated in succession, and became a cause of action. They were an assertion of the same claim – namely, a claim to pour sewage into the stream -- and a continuance of the same alleged right.
[102] This articulation of the doctrine of continuing tort was recently affirmed by the Ontario Court of Appeal in Albert Bloom Limited v. London Transit Commission et al.[28] where it was stated:
…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.
[20] The generally accepted test of a continuing cause of action is found in Hole v. Chard Union, [1894] Ch. 293 (C.A.), per Lindley, L.J., at p.295
“What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.”
[21] Hole was cited with approval by the Manitoba Court of Appeal in Manitoba v. Manitoba (Human Rights Commission) (1983), 1983 CanLII 2967 (MB CA), 25 Man. R. (2d) 117 (Man. C.A.). In that case the plaintiffs alleged discrimination as a result of their compulsory retirement at the age of 65. The Manitoba Human Rights Act prescribed a limitation period of six months “after the alleged contravention or, where a continuing contravention is alleged, after the date of the last alleged contravention of the Act.” Phelp J.A., for court, held, at para. 19.
“To be a “continuing contravention”, there must be a succession or repetition of separate acts of discriminations of the same character. There must be present acts of discrimination which could be considered as separate contraventions of the Act, not merely one act of discrimination which may have continuing affects or consequences.”
[22] In the instant case, the alleged act or acts of negligence had all occurred, at the latest, by the end of 2003. There is no allegation in the pleadings of a succession or repetition of separate acts of negligence by the defendant since 2003 such that the limitation period would continue to run on a day to day basis. The pleading that the defendant’s sewer system “is” deficient and that the defendant “is” in breach of alleged duties of care to the plaintiff does not constitute the type of repetitive and continuing conduct which is the foundation of a continuing cause of action. The plaintiff pleads that its damages relate to the costs of the installation of the lift system and the failure or refusal of the defendant to reimburse the plaintiff for those costs which were incurred in 2003 and 2004. There is no allegation of continuing damages. The damages are fixed by the pleadings, as of 2004.
[23] The principles set out by the Supreme Court of Canada in Chaudiere Machine and Foundry Co. v. Canada Atlantic Railway (1902), 1902 CanLII 18 (SCC), 33 S.C.R. 11 (S.C.C.) are also applicable to this case. In Chaudiere, in 1888, the defendant railway company built its line through a street in Ottawa and, in so doing, built a ten foot high embankment and raised the level of the street. The plaintiffs acquired land on this street in 1895. In 1900, they brought an action alleging that the level of the street was raised unlawfully, and claimed damages for flooding and for obstruction of entry to their premises. The Supreme Court of Canada held that the plaintiffs’ right to complain of trespass or nuisance arose when that trespass or nuisance was committed, which was over ten years before the action was instituted and beyond the six year limitation period. The court stated, at para. 3:
“The fact that they [the plaintiffs] became the owners of this lot only in 1895 does not affect the case one way or the other. If they have an action every spring after the melting of the snow, or after each rain storm during the summer, as they would contend, the party who owned the lot in 1888 would have the same right had he retained ownership of it. Now that cannot be so. He had then a right of action for the waters shed upon the lot and the impaired access to the street, and the depreciation of value of his property in consequence thereof, and upon such an action the damages caused by the respondent’s embankment would have been assessed once and for all (citations omitted).
His right of action would therefore now be barred, or was barred when the present action was instituted by the lapse of six years. And the appellants cannot recover damages upon that very cause of action. The proposition that every conveyance of title would revive a right of action arising out of the same tort for the additional damages suffered by the new owner is untenable. If an action had been taken by the then owner, when the respondents built this embankment, for the damages to this property, a judgment in his favour in that action would be a bar to any subsequent actions for subsequent damages either at his instance or at the instance of the subsequent owners of the property.” Goodrich v Yale, 8 Allen (Mass.) 454.
[24] As summarized in the headnote to Chaudiere: “Upon the erection of a work which causes recurring damage to land, a single cause of action arises in respect thereof and recovery thereon will involve the assessment of damages from all recurring injuries to the property….”
[19] Several authorities indicate that in the case of deliberate torts of a continuing nature where the issues are contested, the trial judge should rule on the limitation issue. One, a case in this court, held that the limitation period should be calculated from the end of the continuing conduct. Starline Entertainment Centre Inc. v. Ciccarrelli 1995 CanLII 7132 (ON SC), [1995] O.J. No. 2494 (Gen.Div.) In that case Epstein J. held that a continuing tort can be explained as the continuance of the act which caused the damage. See Ihnat v Jenkins (1972) 3 O.R. (629) (Ont.C.A.); Carey v Bermondsey Borough Council (1903), 67 J.P. 447 (C.A.). Epstein J. went on to say:
What then is a “continuing cause of action”? It was described in Hole v. Chard Union [1984] 1 Ch. 293 at p. 296 … (C.A.) as:
a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.
In that case, the defendants had polluted a stream by pouring in sewage and refuse. It was held that this was nuisance, and a continuing cause of action. At p. 296, A.L. Smith L.J. stated:
[The series of acts] were repeated in succession, and became a continuing cause of action. They were an assertion of the same claim – namely, a claim to pour sewage into the stream, and a continuance of the same alleged right.
Do the plaintiffs’ claims stand up to this test? They allege that a continuing cause of action exists here because of Mrs. Palmer’s chronic injuries. However, the actions of Mr. Major against them regarding the bingo licence ended around the end of October. On October 28, 1993 the Ministry informed Starline that its licence had already ceased to be valid. The moratorium had been lifted the day before. These were the last acts taken by the defendants, so the six-month period therefore ended in late April 1994.
Factual Determination Required
In Torres v. Export Packers, 2018 ONSC 726, while citing the Court of Appeal case of Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONCA 1004, further analysis to expand on what constitutes as a continuing cause of action were discussed including that the factual issues will often need determination at Trial before the legal issue of continuing cause of action can be evaluated. Specifically, it was said in Torres:
[28] If the Limitation Act applies, it is true that a cause of action cannot be brought after two years from the date the cause of action arose. However, that does not dispose of the matter. The Plaintiff relies on the allegations of "continuous misconduct" that gives rise to the claim. It will then depend on whether the facts result in a finding of an ongoing and continuous cause of action rather than a series of independent torts. This factual determination cannot be made on the allegations in the pleading.
[29] Bailey v. Milo-Food & Agricultural Infrastructure & Services Inc., 2017 ONCA 1004 was released on the day this motion was argued. Both parties, having only dealt with the motions judge's decision, were given an opportunity to make further submissions on the Court of Appeal's decision. It is clear that, some of the factual allegations (commencing March 7, 2013) in Bailey pre-dated the 2 year limitation period from December 21, 2015. While the Court of Appeal was dealing with a Rule 21.01(1)(b) motion, the court stated:
The claims arguably arise from a continuing cause of action that predates the notice of termination, rather than a series of independent torts. We are of the view that the motion judge was correct to dismiss the motion to strike these claims, since they were “entangled with factual issues.”
[30] The Defence argues, in its supplementary submissions, that in Bailey, the acts were continuously complained of and repeated amounting to a possible continuing cause of action. The Defence submits that such cannot be said of the allegations in this case. I fail to see the distinction with the alleged facts in this case. Even if this court could see the distinction urged by the Defence, this court should read the Amended Statements of Claim generously and that drafting deficiencies and a failure to plead with precision and clarity are not fatal if the necessary material facts are pleaded. See R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] 3 S.C.R. 45, at paras. 17, 21-22; and Paton Estate v. Ontario Lottery and Gaming Corporation, 2016 ONCA 458 (CanLII), 349 O.A.C. 106, at paras. 4-5, 11-14.
[31] In my view, it is not plain and obvious whether the impugned paragraphs refer to a series of independent torts or to a continuous cause of action.
[32] It will be for the trial judge to decide whether there is a continuing cause of action or a single cause of action arising from the termination limiting the damages to the events in the prior two years (if the Limitation Act applies).
Conclusion
Continuing cause of action principles offer nuanced considerations for limitation periods. These principles illuminate situations where the traditional commencement of a limitation period may adjust due to ongoing circumstances, ensuring fairness in legal proceedings.
