• Mark D. Johnston

Am I Too Late To Sue For My Car Accident? – The Answer May Not Be A Simple “Yes” Or “No”

In Ontario, s. 4 of the Limitations Act, 2002, imposes a basic limitation period requiring that a lawsuit must be commenced on or before the second anniversary of the day on which the claim was discovered. In other words, two (2) years from the date upon which a claim is discovered.

S. 5 of the Limitations Act addresses “discovery” of a claim as follows:

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

In the case of a motor vehicle accident in Ontario, the application of s. 5(1) can often result in a limitation period which is longer, possibly even substantially so, than two years.

The reason the limitation period is not always simply two years from the date of your car accident is that s. 267.5(5) of the Insurance Act requires a car accident plaintiff to prove that he or she has suffered a “permanent serious impairment of an important physical or mental function” or “permanent serious disfigurement”. There is also a $30,000 statutory deductible which prevents claims for damages unless the injuries are worth more than the $30,000 deductible. For example, if a Jury awarded you $50,000 for your injuries, you would receive only $20,000. There is an exception if your award exceeds $100,000, in which case there is no applicable deductible. Because of these legal requirements facing plaintiffs in car accident claims, our courts have found that in many cases plaintiffs do not have sufficient evidence supporting the permanence and seriousness of their impairments to trigger the commencement of the two year limitation period until a point in time well after the date of the accident.

In the recent case of Lindhe v.Woderyelesh Chalte et al, 2015 ONSC 2821, the defendant brought a motion to dismiss the plaintiff’s case because the lawsuit had been commenced on December 13, 2013, nearly three years following the date of the accident, which was January 5, 2011.

Justice Stewart noted that the test to be applied was “at what point was there a sufficient body of objective evidence before the court to demonstrate that the plaintiff’s injuries met the threshold test of “permanent and serious” under the Insurance Act.?”

Her Honour determined that the discoverability issue was “inevitably caught up in the evidence as to his actual level of pain and dysfunction and what Lindhe’s treating physicians and others observed and told him, in addition to what Lindhe himself has said about these issues, in order to fairly determine when a reasonable person ought to have known a tort claim should be pursued against Chalte”.

Justice Steward held ultimately that the issue of when the plaintiff Lindhe’s case was discovered required a full trial to determine. Therefore Lindhe’s action was permitted to continue and the motion of the defense to dismiss the action was denied.

In summary, the application of the usual two year limitation period in the case of car accidents requires a careful legal analysis of all medical evidence, evidence of the plaintiff and evidence of other witnesses interacting with the plaintiff in his or her day to day life. While it is certainly prudent to obtain legal advice as soon as possible after your accident, if for some reason you have not started a lawsuit within two years, it is a good idea nonetheless to talk to a lawyer about your own fact situation as it may not be too late to sue.


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