My Neighbour's Old Renovation Has Been Continually Damaging My Property ' Can I Still Make A Claim Or Is It Statute-Barred?

• Published date: 18 July 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: Devry Smith Frank LLP
• Author: Devry Smith Frank LLP and Gabriella Schneider

Your claim may be "statute-barred" if it falls outside of the limitation periods within your jurisdiction. The Limitations Act, 2002 sets out two main limitation periods for claims commenced in Ontario: (1) a general 2-year limitation period, beginning when the claim was discovered and (2) an ultimate 15-year limitation period, regardless when the claim was discovered.

These limitation periods were both considered by Tyszko v St. Catherines (City), a recent decision from the Superior Court of Justice. This case mainly addressed the following question: does a claim for ongoing property damage resulting from work completed nearly twenty years earlier fall outside the ultimate 15-year limitation period?

The Facts

This decision centered around a motion for summary judgment commenced by the plaintiff, Mr. Tyszko, against the City of St. Catherines for damage resulting from work they completed near the plaintiff's property.

On September 12, 2002, the City installed new storm sewers at the plaintiff's property. Since then, whenever it rains, water flooded the property instead of draining onto the road. In 2021, the plaintiff sought compensation for repairs made to the property, loss of enjoyment of the property, and his mental distress caused by the claim.

In 2015 and 2016, the plaintiff began to notice that rain would come toward his parents' house instead of onto the street and that cracks were appearing in the basement and around the house. When the plaintiff acquired title to the property in October 2017, he immediately complained to the City about the drainage problem.

After getting nowhere with the City, the plaintiff retained a lawyer, who wrote to the City in January, April, and May 2018. In May 2019, the lawyer wrote again, threatening legal action. The City did not respond until the plaintiff's lawyer followed up in January 2021. An adjuster for the City then investigated the plaintiff's claim and rejected it on March 12, 2021. The plaintiff finally commenced his statement of claim on July 13, 2021.

The City argued that the claim was statute-barred by the ultimate 15-year limitation period or, alternatively, the general 2-year limitation period. The plaintiff disputed these arguments. He held that the 15-year limitation period did not apply as the damage was ongoing; moreover, as he did not know that a legal proceeding was the appropriate remedy until the City denied his claim in March 2021, his claim fell within the general 2-year limitation period.

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