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Torts - 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. ....
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[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.
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