TIME MATTERS: LIMITATION PERIODS FOR PERSONAL INJURY CASES

At our office, it is not uncommon to have prospective clients reach out to us and tell us they have been injured as a result of someone else’s negligence, only to find out that it happened many years ago. Had it been within the limitations period, they would have a strong claim. Unfortunately, while limitation periods fluctuate and are subject to many exceptions, sometimes there is just too much risk to pursue a statute-barred expired claim.

In Ontario, limitation periods are enforceable time limits. A missed deadline can end a personal injury claim before a court ever reaches the merits, even where liability appears strong. That is why a personal injury claim in Ontario should be assessed early, with the limitation issue treated as a priority from day one. Time limits also shape the quality of proof. Medical records, photographs, witness contact information, and property maintenance documents are easiest to collect close to the event.

As the months and years pass, evidence becomes harder to locate and easier to challenge. For many injured clients, preserving that evidence early is what keeps the focus on accountability, rather than a procedural deadline.

MY CLAIM IS A DECADE OLD: IS THIS A BAD THING?

When an injured victim with an older claim walks into our office, when questioned why they did not find a personal injury lawyer sooner, they often explain they had never heard of a limitation period or did not know they could sue at the time. They often simply did not think the passage of time made a difference.

Unfortunately, it may mean all the difference. As a caveat, we don’t blame these people for not knowing; many people do not know this piece of the law.

Why delay can change the case

Delay affects both procedure and proof. Evidence becomes harder to obtain, witnesses become harder to locate, and the details that matter in a lawsuit can be challenged more easily. Even if a claim is still technically within the time limits, delay can reduce settlement leverage and increase litigation risk, particularly where the defendant argues prejudice from the passage of time.

No matter how dedicated and experienced a law firm may be, it cannot re-write the law when it comes to limitation periods. We may be able to use different principles to help, but we may not. The most prudent approach: speak to a lawyer immediately and discover whether or not you have a claim.

Minors and capacity concerns

Ontario law may suspend limitation periods in certain cases involving minors or incapable persons, particularly where there is no litigation guardian in place for the claim. These rules are fact-specific and should not be treated as a substitute for acting promptly.

WHEN DOES A LIMITATION PERIOD START?

A limitation period typically begins at the time of loss, or in other words, on the date you have been injured. There are exceptions however, one notable exception being the discoverability principle. For many claims, the analysis turns on discovery.

This is why the basic limitation is often described as two years from the date a person knew, or reasonably ought to have known, that a claim should be pursued. Where symptoms evolve, diagnoses take time, or causation is not immediately clear, the deadline can become a contested issue.

Ontario also contains an outside limit intended to bring finality to very old matters. This is sometimes described as the ultimate limitation period of 15, and it is commonly referred to as the limitation period of 15 years.

WHAT IS THE DISCOVERABILITY PRINCIPLE?

It is not uncommon for a Plaintiff to rely upon what is known as the discoverability principle, particularly in motor vehicle accidents (MVAs). While the standard limitation period is two (2) years provided under section 4 of the Limitations Act, 2002, with few exceptions, courts have effectively held that the two year period did not begin to run until the Plaintiff had obtained an expert report which diagnosed a permanent condition which could surpass the threshold of a permanent serious impairment of which MVA claims are subject to (this is specific to MVAs).

The principle of discoverability as outlined in section 5 of the Limitations Act, 2002, in some situations may delay the commencement of the two-year limitation period, its applicability has no guarantees and defense counsel will certainly hone in on this as a significant triable issue, and rightfully so, given the status of our law. Because discoverability is fact-driven and frequently litigated, it should never be treated as a safety net.

The prudent approach is to preserve the medical timeline and obtain an early legal assessment before a lawsuit becomes statute-barred.

CONTACT A LAWYER AT THE OUTSET OF YOUR CLAIM

Some Ontario deadlines run in days

Some time limits are measured in days, not years. Where a claim involves a municipality and allegations that a roadway or sidewalk was not properly maintained, written notice may be required within 10 days. In the days of the incident, the injured person should focus on medical care, but it is equally important to protect the personal injury claim by identifying the correct parties and preserving the notice deadline.

If you think you may need to file a personal injury claim, act early: document the scene, identify witnesses, and keep medical and work records. For a slip and fall, conditions can change quickly once the area is repaired.

For a car accident, keep copies of correspondence and documents relating to accident benefits so the benefits process does not distract from the court deadline or the decision to start legal action.

This article is general information and not legal advice. Bernstein Law Group assists clients throughout Southern Ontario, including Milton, Oakville, Dundas, Brantford, Stoney Creek, Burlington, Ancaster, and Cayuga.