In Ontario, the Limitations Act, 2002 sets out time limits for when a person can sue another person for certain claims, such as with respect to a personal injury claim. An injured person generally (and simplistically stated) has a maximum of two years from the date of injury, or when the person ought to have known about the injury, to start a lawsuit for damages and losses suffered from the injury. There are exceptions to the rule.
Injured Minor or Incapable Person
The legislation itself sets out exceptions to the general two-year limitation. Ontario’s Limitations Act, 2002 provides that where the victim is a minor and a claim isn’t brought by a litigation guardian on the minor’s behalf, the two-year countdown starts running once the minor turns 18.
Also, where someone is incapable of starting a lawsuit because of a physical, mental or psychological condition and no claim is started on that person’s behalf by a litigation guardian, the two-year countdown won’t start running at the time of the accident. Instead the time limit will start when it is deemed that a reasonable person, in the injured party’s shoes, knew or ought to have appreciated the relevant limitation period.
Lawsuit Delayed Due to Criminal Prosecution
In terms of case law, a few months ago the Supreme Court of Canada dismissed an application to hear a limitation period case. The applicants sought to overturn an Ontario Court of Appeal decision where the respondent was found not to have exceeded the time limit in filing his claim for battery.
In Winmill v. Woodstock (Police Services Board), the injured party was seeking damages for injuries sustained from an alleged negligent police investigation and assault. He filed a Notice of Action two years and one day after the alleged battery.
Among other factors, the Ontario Court of Appeal considered the circumstances of the person with the claim. Macpherson J.A. stated that it made sense for the injured party in this case to postpone “whether to make a battery claim against the respondents until his criminal charges for assault and resisting arrest were resolved.”
Macpherson J.A. decided that “the discoverability date for the appellant’s battery claim was… the date of his acquittal on the criminal charges.”
Claim Delayed Due to Good Faith Efforts
In the Winmill case, Macpherson J.A. cited the Ontario Court of Appeal case of Brown v. Baum. In that case, a patient had undergone breast reduction surgery and suffered severe complications. Afterwards, over a 13-month period, the doctor performed a series of remedial surgeries. The patient did not file her statement of claim until over three years after the initial breast reduction surgery.
Given the facts of the Brown case, Feldman J.A. concluded that the motion judge was correct in his approach to the limitation issue:
“He was entitled to find that Ms. Brown did not know that it was appropriate to sue Dr. Baum until after the last surgery he performed to try to correct the complications and improve the outcome of the original surgery. As the motion judge observed, it is not simply an ongoing treatment relationship that will prevent the discovery of the claim under s. 5. In this case, it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery. This could have avoided the need to sue.”
The two-year time limit did not start running until the date of the last ameliorative surgery.
As you can see, do not automatically think that after two years from the date of your injury you may no longer sue someone in a personal injury case. Talk to an experienced personal injury lawyer about the specific facts of your case. Douglas Strelshik is a personal injury lawyer who has been representing injured parties for over 30 years.