By
Pace Law

How long do you have to sue? Limitation periods explained by the courts

October 14, 2019

The Limitations Act, Ontario has been in force since 2002. The legislation is aimed at balancing the objectives of meeting the needs of justice, while also providing statutory certainty. In ‘How Long do I have to Sue?’ we explain the different limitation periods in Ontario that apply to personal injury claims.

Whereas a two-year time limitation period applies to most civil claims in Ontario, some types of claims allow only 10 days in which to file a claim or serve notice of a claim. For instance, the slip and fall limitation period — which is being debated in the Ontario Legislative Assembly, at the time of writing of this article — may be reduced to 10 days. The Limitations Act also prescribes 15 years as the ultimate limitation period — which is applicable only in exceptional circumstances.

Flexible limitation periods

The limitation periods under the Act are not set in stone. There are exceptions that allow claims to be brought after the standard time limit, provided the qualifying criteria are met. Courts will also make exceptions to the application of the limitation period, depending on the facts of the case. For example, if a wrongful action is discovered years after the claim’s ostensible limitation period has expired, the court may extend the limitation period in recognition of the existence of extenuating circumstances. A few examples include:

  • A medical device placed inside the patient’s body disintegrates after a few years due to a manufacturing defect
  • The insurer denied an otherwise legitimate claim and the circumstances surrounding that denial come to light only after months or years have passed
  • A car accident victim suffers spinal injuries but treatment at the hospital is delayed, and injuries exacerbated by that delay are discovered a few years later

These are a very small set of examples showing subjectivity in limitation periods. Any case or claim, be it a car accident claim, slip and fall, spinal injury, dog bite injury or any other type of personal injury claim may fall under the exceptions to the ‘time limit to sue.’

Whether a court will allow an accident victim to file a claim outside the limitation period depends on the length of delay, severity of injury, and culpability of the wrongdoing party.

In this article we look briefly at a few cases that have helped shape limitations law in Ontario. To understand where you stand with your claim, speak to a Toronto personal injury lawyer. The law is ever-changing and an up-to-date understanding is essential to assessing your claim.

Car accident limitation period

After a car accident, a number of different entities are involved in indemnifying accident victims. In the event of a serious accident, the accident victim may not even have the emotional and/or physical capacity to commence a claim several months or even years after the accident.

Note, the Limitations Act 2002 sets a two-year limitation period for bringing a car accident claim commencing from the date when it is ‘discovered’. Typically, injuries will be ‘discovered’ in the days after the accident. However, if you do not know you have been injured, how can you know that you could have a claim?

‘Discovery’ of claim under The Insurance Act 1990, section 267.5(5) occurs when the victim becomes aware of:

  • Serious disfigurement,
  • Serious impairment of an important physical, mental or psychological function.

Syed Farhat v Roxana Monteanu (2015)

Mr. Farhat commenced a claim for injury due to a car accident two years and 32 days after the date of the accident. Initially, the victim did not appear to have been injured in the accident; however, later visits to specialists revealed that Mr. Farhat had sustained injuries that were possibly permanent. Despite the claim being somewhat vague, the Superior Court of Justice found sufficient reason to allow the claim based on ‘chronic pain becoming permanent serious impairment.’ It added that the Court does ‘not have to determine when precisely Mr. Farhat discovered or ought to have discovered that his claim’ involved serious and permanent injury.

Fuller et al. v. McCartney et al. (2003)

The plaintiff instructed his counsel to commence legal action against the defendants more than two years after a car accident had occurred. In the first two years following the accident, the plaintiff’s medical reports had given a promising prognosis but, in doing so, failed to identify the full extent of his injuries. The Superior Court of Justice held time ‘does not begin to run until it is reasonably discoverable that the plaintiff’s injury meets the threshold in s. 267.5(5) of the Insurance Act.’

Read more about the insurance deductible, which can also influence the decision to pursue a car accident claim.

 

Read what you should do after an accident

What to do if you have been injured in a TTC accident

Who pays my bills after a car accident

4 things that can let an occupier off the hook in slip and fall

personal injury lawyer toronto

Cases shaping limitation periods for slip and fall

Canada (and Ontario) is a common law jurisdiction. It means decisions of the court can and do modify the law. For this reason, simply reading the Limitation Act is not enough to gain a complete understanding of how long you may have to initiate a legal action. There exits an extensive body of case-law that must be understood in order to grasp all of the complexities associated with issues regarding limitation periods.

Limitation for claims against the city and municipality

One of the shortest limitation periods involves claims against municipal governments. Given the fact that an accident victim has just 10 days to file a claim, it is hardly surprising that the courts have taken a ‘broad and liberal’ approach to granting extensions.

Crinson v Toronto (2010)

In a classic slip and fall claim, the accident victim, Mr. Crinson, fractured his ankle on an icy sidewalk. The claim was filed outside of the 10-day limitation period. However, the Ontario Court of Appeal ruled that the limitation period could be extended — as it found that Mr. Crinson had a ‘reasonable excuse’ under Section 44 of the Municipal Act, given the serious nature of his injuries and his emotional state resultant of the accident.

Robin Seif v City of Toronto and Armel Corporation (2011)

Ms. Seif broke her non-dominant wrist on an uneven sidewalk. Despite her pain, she became mobile soon after the accident. A few months later, she continued to be in significant pain — which led to the discovery that she had suffered a permanent injury in the accident and would suffer from chronic pain permanently. Her claim was filed with the City of Toronto four months after the fall. The court noted that there was a ‘reasonable excuse’ for Ms. Seif not having filed the claim. It concluded that it was reasonable that she would ‘explore legal action only when she found out that [she] would suffer pain and limitation…for the rest of her life.’

Lack of awareness of the limitation period does not automatically constitute a reasonable excuse to file a claim outside the limitation period.

Limitation periods are an important aspect of any claim and you need to consult with a personal injury lawyer in Toronto to understand where you stand. Even if your claim is outside the time limit set, it does not mean your claim is lost. As we have explained, courts will assess limitation periods to ensure justice is not denied.

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191 The West Mall, Suite 1100
Toronto, ON M9C 5K8
Phone: 1-877-236-3060
Fax: 416-236-1809

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