The Ontario Superior Court of Justice's decision in Hennebury v Makita Canada Inc., 2025 ONSC 3850 ("Hennebury") provides clarity on a significant question in product liability case law: when damages are caused by a product manufactured, designed, or distributed outside of Ontario's ultimate limitation period of 15 years, can a claim be made out in negligence against the designer, manufacturer, or distributor of that product? Hennebury demonstrates that—in many circumstances—the answer to this question is no. This case is significant for defendants facing negligence claims for a product they designed, made, and distributed before July 2010.
Background
A plaintiff allegedly sustained facial injuries in June 2019 after his Makita RF1101 router (the "Router") unexpectedly sped up, leading part of a stone grinding bit to strike him.1 In March 2020, the plaintiff sued the defendant power tool distributor, Makita Canada Inc. ("Makita Canada"), in negligence and for breach of warranties, conditions, and terms.2 The plaintiff alleged that the defendant failed to "provide adequate warning of the risks with the router."3
Notably, Makita Canada was neither the designer nor the manufacturer of the Router.4 Makita Canada's Japanese parent company, the Makita Corporation, designed the Router.5 Furthermore, as the parties learned during discovery, the Makita Corporation of America manufactured the Router in March 2001,19 years before the plaintiff's injuries.6 After this revelation, Makita Canada amended its Statement of Defence to plead that the action was barred by section 15 of the Limitations Act, 2002, which prohibits claims from being commenced 15 years after the date of the action or omission they arose from.7 The parties agreed to decide whether the action was statute-barred on a motion for summary judgement brought by Makita Canada.8
The Court's Decision
Ultimately, the Court decided in favour of Makita Canada, finding that the action was barred by the ultimate limitation period.9 The court reasoned that because the plaintiff had brought their claim in 2020, which was 19 years after Makita Canada's "alleged acts or omissions," any claims arising the Router's design, manufacturer, and distribution fell outside the ultimate limitation period.10 While the court acknowledged that the plaintiff's claim did not "materialize" until their 2019 injury, meaning that they brought their action within the basic two-year limitation period, the ultimate limitation period barred this particular claim since it "rests entirely on an alleged defect in manufacture" that would have occurred over 15 years prior to the commencement of the claim.11
The plaintiff argued that the ultimate limitation period should not bar their action because Makita Canada's actionable conduct was ongoing.12 In rejecting of the plaintiff's argument, the Court found that there was no "ongoing actionable conduct" of Makita Canada.13
The court clarified that a continuing cause of action arises from an ongoing act or omission, which is "a succession or repetition of separate acts of the same character."14 Under a continuing cause of action, each repetition creates a new cause of action.15 Importantly, the court asserted that not every failure to warn constitutes ongoing actionable conduct,16 nor does an allegation that "the defendant was under an ongoing duty of care to the plaintiff" independently constitute such conduct.17 In reaching this conclusion, the court referred to Bowes v Edmonton (City of), wherein the Court of Appeal of Alberta denied that a municipality's alleged breach of duty to warn against riverbank construction was continuous and ongoing 12 years after riverbank homes were built.18 This was because any alleged negligence happened at the time of construction and "absolutely nothing happened" afterwards.19 It was further stated that since most causes of delayed tortious harm could be framed as failures to warn, treating all ancient failures to warn as "occurring every day would be a fiction destroying all limitation periods."20 Accordingly, since Makita Canada had "done nothing which would constitute a continuing act or omission since the manufacture of the" Router, it did not engage in any ongoing actionable conduct.21 Hence, the plaintiff's claim remained statute barred.22
Key Takeaways
Hennebury confirms the 15-year ultimate limitation period provides a complete defence to negligence claims based solely on product design, manufacturing, or distribution that occurred more than 15 years ago. The decision clarifies previously unsettled case law regarding the application of the ultimate limitation period to negligent product design and manufacture claims. This limitation defence is not automatic. The Court found no ongoing actionable conduct in Hennebury but acknowledged that such conduct could exist in other cases. Defendants should therefore assess the pleadings and whether any alleged negligence involves continuing acts that may impede their ability to rely on the ultimate limitation period.
Footnotes
3 Hennebury at para 2.
5 Hennebury at para 10.
7 Hennebury at paras 9, 21; Limitations Act, 2002, SO 2002, c 24, Sched. B, ss 15(1)– 15(2).
9 Hennebury at para 35.
10 Hennebury at para 25.
11 Henneburya t paras 25, 26; Limitations Act, 2002, s 4.
12 Hennebury at para< a href="https://www.canlii.org/en/on/onsc/doc/2025/2025onsc3850/2025onsc3850.html#:~:text=%5B26%5D,I%20respectfully%20disagree." rel="noopener" target="_blank">26.
13 Hennebury at para 33.
14 Hennebury at para 30, citingHuether v Sharpe, 2025 ONCA 140 at paras 43– 44 [Huether], Sunset Inns Inc. v Sioux Lookout (Municipality), 2012 ONSC 437, and Sunset Inns Inc. v Sioux Lookout (Municipality) 2012 ONCA 416.
15 Hennebury at para 29, citing Huether at para 39.
16 Hennebury at paras 31– 32, citing Huether and Bowes v Edmonton (City of), 2007 ABCA 347 at paras 169, 173– 174[Bowes].
17 Hennebury at paras 30, 34 citing Huether at paras43– 44, 48– 49 [Huether], Sunset Inns Inc. v Sioux Lookout (Municipality), 2012 ONSC 437, and Sunset Inns Inc. v Sioux Lookout (Municipality) 2012 ONCA 416.
18 Hennebury at para 31, citing Bowes.
19 Hennebury at para 31, citing Bowes at para 169.
20 Hennebury at para 32, citing Bowes at paras 173– 174.
21 Hennebury at para 33.
22 Hennebury at para 33.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
