Can a Neighbour's Drainage Cause an Ongoing Nuisance in Ontario?

What Is a Continuing Nuisance in an Ontario Property Dispute?

A continuing nuisance exists when a neighbour’s conduct keeps interfering with your use and enjoyment of your land on an ongoing basis, rather than causing a single, one-time harm. In Karagan v. Seemann, 2026 ONSC 5278 (CanLII), the Ontario Superior Court of Justice confirmed that redirected surface water runoff can qualify as a continuing nuisance — meaning each fresh episode of runoff damage can give rise to a new legal claim, even if the original drainage work was done years earlier.

This matters because it separates the question of when the neighbour acted from when your right to sue arises. If the water keeps coming, the law keeps giving you a cause of action — at least for the harm that falls within the two-year limitation window.

Does Ontario’s Two-Year Limitation Period Apply to Ongoing Water Damage?

Yes — Ontario’s two-year limitation period applies even to continuing nuisance claims, but it applies in a specific way. The court in this case confirmed that damages sustained more than two years before the claim was issued are barred. Damages that arose within the two-year window before filing are recoverable.

This is not a loophole. The Limitations Act, 2002 still runs its course. What the continuing nuisance doctrine does is prevent the entire claim from being wiped out simply because the original drainage alteration happened a long time ago. You lose the older losses; you keep the recent ones.

What Is the Discoverability Rule and How Did It Affect This Case?

Discoverability is the legal principle that your two-year clock starts running when you knew — or reasonably should have known — that you had a claim worth pursuing. In this case, the court examined whether the applicant had met the burden of proving that the claim was discovered within two years of filing.

The court found that the claim was discoverable earlier than the applicant argued. A prior owner’s knowledge was considered relevant. The s. 5(2) presumption under the Limitations Act, 2002 — which presumes a person knew of their claim on the day the act or omission occurred — was part of the analysis. Because the applicant could not prove discovery fell within the two-year window for the older damages, those losses were barred.

The practical message: if you notice water damage from a neighbour’s drainage work, the clock may already be running — even if you haven’t yet figured out the full extent of the harm.

Can You Still Get a Court Order to Fix the Drainage Problem?

Yes — a mandatory injunction requiring corrective drainage work is not automatically barred just because some of your damages are time-limited. The court in this case allowed the injunction claim to proceed even while barring the older damages.

This is a significant point for homeowners. Even if older damages are time-barred, a claim for a mandatory injunction to correct the drainage work may still proceed. The goal of stopping the ongoing interference is treated separately from the goal of compensating you for past losses.

What Makes a Water Drainage Dispute a Legal Nuisance?

Not every inconvenient water situation qualifies as a legal nuisance. The interference must be both substantial and unreasonable — it has to meaningfully affect your use and enjoyment of your property, not just cause minor inconvenience.

Courts look at factors like the severity and frequency of the water intrusion, whether the neighbour’s actions were the cause, and whether a reasonable person in your position would find the interference intolerable. In this case, the court applied the principles from Chaudière and Roberts to a situation involving a lawful act — the drainage alteration — that later caused damage. The lawfulness of the original act did not shield the neighbour from liability once the resulting harm crossed the nuisance threshold.

How Does a Prior Owner’s Knowledge Affect Your Claim?

If you bought a property that was already experiencing drainage problems caused by a neighbour, the prior owner’s knowledge of those problems can count against you on limitations. The court in this case considered what the previous owner knew when assessing when the claim became discoverable.

This can be a trap for purchasers. If a prior owner knew about the drainage problem and that knowledge is attributed to the current owner’s timeline, the two-year clock may have started before you even took possession. Reviewing disclosure documents and asking specific questions about drainage at the time of purchase is important — our Ontario litigation lawyers can help you understand how these rules apply to your specific situation.

Questions and Records to Discuss with a Lawyer

• When did you or a previous owner first notice the water intrusion or drainage problem, and is there any written record of that?
• Do you have photographs, repair invoices, or correspondence documenting the damage and when it occurred?
• Has the neighbour’s drainage or grading changed, and do you have any evidence of when that change was made?
• Have you received any written communications from the neighbour or the municipality about the drainage issue?
• Are you seeking compensation for past losses, a court order to fix the problem, or both — and how does that affect your urgency in getting legal advice?

If you are dealing with a surface water or drainage dispute with a neighbour, the team at UL Lawyers is available to discuss your circumstances. Reach out through /connect to speak with one of our lawyers about your situation. We serve clients across the region, including through our Burlington litigation practice and Hamilton litigation practice.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.