We have previously written about the different limitation periods set out in the province’s Limitations Act. Generally speaking, where a party does not bring their claim against another within the time period stipulated in that statute, their right to do so will expire. This time period is known as a “limitation period.” Usually, under the Limitations Act, a party must bring their claim within two years of discovering it. This is known as the “basic limitation period” and is subject to various exceptions and conditions. However, the Limitations Act also includes a second limitation period that applies regardless of when or if the claim is discovered. This is known as the “ultimate limitation period.” This blog dives into this critical timeframe, exploring when it applies and why it matters to anyone who might one day need to pursue a legal claim.
Section 15(2) of the statute provides that no proceeding shall be commenced in respect of any claim later than 15 years after “the day on which the act or omission on which the claim is based took place.”
A recent Court of Appeal decision reviewed the purpose of the ultimate limitation period. The case of Huether v. Sharpe concerned a claim brought by purchasers of a residential property against the Corporation of the Township of McMurrich-Monteith. Shortly after purchasing the property in 2021, the plaintiffs discovered defects in the foundation of the dwelling built on the property. They alleged that the Township had failed to “properly supervise the construction of the dwelling.” Construction of the dwelling had been completed in 1987, and the lawsuit had been commenced against the Township in 2022.
The issue before the Court of Appeal was whether the plaintiffs’ action was barred by the ultimate limitation period in section 15(2) of the Limitations Act.
The Court of Appeal noted that the Limitations Act was designed to balance “the plaintiff’s right to sue with the defendant’s need for certainty and finality” (see also Canaccord Capital Corp. v. Roscoe). The basic limitation period was structured around the common law principle of “discoverability” – that is, the principle that a limitation period should only begin running “once a person becomes aware (or ought reasonably to have become aware) of their claim.” However, as the Court of Appeal pointed out, concern also existed about circumstances in which a claim could be brought “decades later” in relation to hidden defects. As the province’s Attorney General indicated, it did not make sense that architects and engineers could be sued “50 years after building a home.” This concern gave rise to the need for an ultimate limitation period.
As described by the Court of Appeal, the purposes of the ultimate limitation period included the following:
The province’s legislature recognized that imposing an ultimate limitation period could be unfair in some situations. As a result, it included several exceptions in the Limitations Act. For example, section 15(4) provides that the ultimate limitation period will not run during any period in which the claimant lacks capacity or is an unrepresented minor or the defendant “willfully conceals” certain facts related to the claim.
Another exception relates to “continuous acts or omissions.” Section 15(6) sets out certain rules for determining the day upon which an act or omission that a claim is based upon is deemed to have taken place. It was this provision that was at issue in the Huether case.
Section 15(6) of the Limitations Act states that, in the case of a “continuous act or omission,” the day on which an act or omission on which a claim is based is the day on which that act or omission “ceases.”
As the Court of Appeal pointed out, referring to commentary of the Alberta Law Reform Institute, this exception to the purposes underlying the ultimate limitation period is justified because “concerns over stale evidence are mitigated” since the evidence in issue “will have continually renewed itself with the defendant’s repetitive conduct.” Further, concerns over fairness are not so acute since the wrongful conduct on the issue will have “just stopped.”
The Court of Appeal noted that the concept of a “continuing cause of action” dates back to the 19th century. The term describes a cause of action that accrues “from repeating actionable conduct.” Each repetition of the conduct is identical and “occurs continuously.” As such, each time it occurs, it forms the basis of “a new and discrete cause of action.” By way of example, the Court of Appeal noted that trespass is such a continuing cause of action, since each day the trespass occurs, “a new and identical cause of action” in trespass accrues.
The Court was careful to note that conduct is not to be considered continuing “merely because it can be rectified or because the harm it causes is either continuing or delayed.” Case law shows that an ongoing duty of care or failure to warn in and of themselves may not be sufficient to constitute continuous acts or omissions. The Court cited a comment of the Alberta Court of Appeal that this is because “most cases of delayed harm from a tort could be dressed up as failures to warn, with no limitation period.”
In Huether, the Court of Appeal noted that from February 1988 onward, the Township had treated the permit issued in relation to the dwelling built on the subject property as closed. From then on, it did not have “any role or involvement with the construction of the Dwelling.” As the Court noted, “absolutely nothing” happened after this.
While the plaintiff alleged that the Township had a “duty to monitor” open permit files,” the Court of Appeal observed that “the mere allegation that the defendant has some generalized ongoing duty to the plaintiff is, in and of itself, insufficient to toll the running of the ultimate limitation period, absent some successive or repeated actionable conduct on the part of the defendant.”
The appeal was allowed, and the action against the Township was dismissed because it was statute-barred.
Facing a complex business or commercial real estate dispute in Ontario? The experienced legal team at Milosevic & Associates in Toronto offers practical advice and effective advocacy to protect your rights. We are dedicated to achieving efficient and effective resolutions tailored to your specific situation. For a confidential consultation, contact us online or by phone at (416) 916-1387.
© 2025 Milosevic & Associates. All rights reserved. Privacy Policy / Disclaimer. Website designed and managed by Umbrella Legal Marketing