Most people are familiar with the term "statute of limitations", but what does it mean? The concept is that after a certain period of time following an event, incident, breach of contract, medical malpractice, injury, accident or collision there is a limited period of time within which a person can bring a legal claim. Civil claims are provincial matters. In Ontario, the deadline to bring a legal action is governed by the Limitations Act, 2002. The basic limitation period in Ontario is two years. This means that a person must file a claim with the civil court within 2 years of the event.

The limitation period in Ontario can be extended beyond two years under certain circumstances. 

There are exceptions and circumstances that can allow a claim to be filed more than two years after the event. For example: 

Minors – the 2 year limitation period does not run during any time in which the person with the claim is less than 18 years old and not represented by a litigation guardian. This means that if a child is injured in a car accident/crash, the limitation period for that minor does not start running until she turns 18 years old.

Incapable persons – the 2 year limitation period does not run during any time in which the person with the claim, is incapable of starting a proceeding because of his or her physical, mental or psychological condition and is not represented by a litigation guardian.

Discoverability - the 2 year limitation period only starts to run when the person with the claim first knew:

• that the injury, loss or damage had occurred,
• that the injury, loss or damage was caused by or contributed to by an act or omission
• that the act or omission was that of the person against whom the claim is made, and
• that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

In our practice, the issue of discoverability is the one that is most litigated.

Discoverability has applied to extend the limitation periods in many different types of cases. For example, in Ontario, there is a restriction on an injured person’s ability to sue for pain and suffering. Before the injured person can succeed in a claim for pain and suffering against the driver who caused the collision the injured person must prove that she has suffered a serious and permanent impairment of an important physical or psychological function. On this basis, our courts have extended the limitation period to 2 years after the date that an injured person first reasonably believed that the injuries suffered in a motor vehicle accident would not get better and would continue to substantially impair the person’s life.

Another example where the issue of discoverability can cause the limitation period to be extended is in the case of medical malpractice. In medical malpractice cases, where expert medical evidence is required to prove negligence, our courts have ruled that the limitation period does not start to run until the injured patient received a favourable opinion that the doctor who treated them fell below the standard of care and caused the injury.

Other instances where the limitation period may be extended include long-term disability claims and cases involving sexual assault. 

For long-term disability claims, the policy of insurance may include a clause that all legal actions must be started within one year of the denial of benefits. In most cases, our courts have ruled that the two-year statutory limitation period overrides a shorter contractual limitation period.

Finally, if you are a victim of sexual assault there is no limitation period. A sexual assault victim can pursue a civil claim against the perpetrator and any other defendant, for example, the CAS or other institution without any time limit.

The two-year limitation period can be challenged in certain instances; your case may still be heard. 

As you can see, there is lots of nuance to when you can sue in Ontario. Don’t be discouraged if you suffered an injury or have been denied insurance benefits and more than 2 years have passed – you still may be able to bring a claim. There are a variety of circumstances that can allow for the limitation period to be extended. If you have questions don’t hesitate to call us to discuss your options.

 

Kris Bonn 

Personal Injury Lawyer

Bonn Law