By: Bridget Irish
Edited by: Jessica DiFederico
In Huether v Sharpe, 2025 ONCA 140,[1] the Ontario Court of Appeal provided clarity on what constitutes a “continuous act or omission” for the purpose of barring a claim pursuant to the ultimate limitation period in section 15(2) of the Limitations Act (the “Act”).
Section 15(2) of the Act stipulates that the ultimate limitation period is 15 years, meaning no claim may be commenced after this period expires. However, section 15(6)(a) of the Act provides that in instances of a continuous act or omission, the 15-year period does not begin until the day on which the act or omission ceases. The correct application of section 15(6)(a) of the Act was a central issue in this case.
Background
In May 1985, a builder applied to the Township of McMurrich Monteith (the “Township”) for a building permit to build a dwelling.[2] In July 1986, The Chief Building Official (“CBO”) carried out an inspection and identified several dwelling deficiencies on the application that had to be remedied within the ensuing weeks.[3] In August 1986, there was an Order to Comply delineating the violations. At some unknown later date, a handwritten note was added to the Order stating that it was “all complied with”.[4] In 1988, a purchaser went to purchase the dwelling, and the Township clerk issued a Treasurer’s Certificate recognizing that no work was outstanding on the basis that the Order was complied with.[5]
Fast forward to October 2021, when the plaintiffs purchased the dwelling.[6] Shortly after, in February 2022, the plaintiffs commenced an action alleging that the Township acted negligently by failing to execute all requisite inspections of the dwelling, which was not in compliance with the Building Code.[7] They claimed the dwelling had a failing foundation and that unpermitted materials were used in its construction.[8]
In March 2024, the Township moved for a summary judgment motion, asserting the claim was time-barred because the alleged negligence occurred in 1988, and the claim was not brought until 2022.[9] The plaintiffs maintained that the Township had an ongoing “duty to monitor” arising from the fact that the building permit was never formally closed. They argued that this constituted a “continuous act or omission” within the meaning of section 15(6)(a) of the Act.
Summary Judgment Motion
The motion judge considered two key issues:
The judge dismissed the Township’s summary judgment motion on the basis that the Township did not close the permit file, therefore imposing an ongoing duty to monitor the permit.[12] The judge concluded that the negligence was “continuous,” which preserved the plaintiffs’ claim within the statutory period.[13]
Appeal Analysis
On appeal, the Ontario Court of Appeal determined that the motion judge misinterpreted the meaning of a “continuous act or omission,” leading to an incorrect conclusion. Furthermore, the motion judge’s finding of a duty of care to monitor the file was also flawed, as the “well-established legal framework” on a duty of care as set out in Anns v. Merton London Borough Council, [1978] A.C. 728 was not applied.[14]
Interpretation Issue
The Court noted that the ultimate limitation period was enacted to preclude litigation concerning latent defects discovered decades after the fact. Among its objectives were to avoid costs associated with prolonged record-keeping and insurance liabilities, and to address the challenges of lost evidence with the passage of time.
Subsequently, the Court of Appeal considered the exception for a “continuous act or omission” under section 15(6)(a) of the Act. It held that a continuous act or omission requires “a repetition of actionable conduct on a continuous basis.” This is not very common in tort, but examples include nuisance and trespass.[15]
The Court concluded there was no successive or repetitive conduct by the Township. The mere fact that the Township left the permit file open did not satisfy the requirement for a continuous act or omission.[16] The Court noted that even if the Township had a duty to monitor open building permits (that question discussed below), the existence of that duty alone does not amount to a continuous act or omission by the Township. Accordingly, the claim was statute barred pursuant to the Act.
Duty of Care
The Court of Appeal further held that the motion judge erred in finding a novel “duty to monitor” open building permit files without first undertaking a proper duty of care analysis. The Court did not undertake the analysis itself but identified that this duty was a novel one and required a full analysis under the Anns/Cooper test. The motion judge did not consider this two-part test in their analysis. Regardless, a further analysis of this issue became moot since the claim was ultimately statute barred.
Decision
The Court of Appeal set aside the motion judge’s order and dismissed the action against the Township.
Takeaways
This decision clarifies that under section 15 of the Act, a “continuous act or omission” does not refer to sustained exposure, but rather to repeated and recurrent actionable conduct that is continuously renewed.
Moreover, this case served as a reminder of why there is an ultimate limitation period. In this case, the construction occurred approximately 36 years before the origination of the claim which posed significant practical challenges, particularly given that the parties involved in the construction and permit were deceased, and the evidence was aged and incomplete.
The ultimate limitation period serves as a mechanism to protect municipalities from negligence claims arising from conduct that is discovered only decades later.
[1] Huether v. Sharpe, 2025 ONCA 140 (CanLII).
[2] Huether v. Sharpe, 2024 ONSC 1987 (CanLII) at para. 12.
[3] Ibid at para. 15.
[4] 2025 ONCA 140 at para. 9.
[5] Ibid at para. 16.
[6] Ibid at para. 17.
[7] Ibid at paras. 18.
[8] 2024 ONSC 1987 at para. 2.
[9] 2025 ONCA 140 at para. 3.
[10] Ibid at para. 20.
[11] Ibid at para. 21.
[12] Ibid at para. 22.
[13] 2024 ONSC 1987 at para. 56.
[14] 2025 ONCA 140 at para. 61.
[15] Ibid at paras. 40-41.
[16] Ibid at para. 46.
