After an injury, the last thing on most people’s minds is a deadline. Recovery, work, family and money come first, and the thought of a lawsuit is put off. That is understandable, and it is also how good claims are lost. Ontario law sets time limits on starting a claim, and some of them are much shorter than two years. This post explains the main ones.
The basic rule: two years from discovery
Ontario’s Limitations Act sets a general limitation period of two years. The clock starts on the day the claim is discovered, which the Act defines as the day you knew, or a reasonable person in your position ought to have known, four things: that you suffered an injury, that it was caused or contributed to by an act or omission, that the act or omission was that of the person you are claiming against, and that a court proceeding would be an appropriate way to address it.
For most accidents, all four are known on the day it happens. If you are hit by a car on Tuesday, the two years run from Tuesday. But there are cases where discovery comes later: a condition that only becomes apparent over time, a cause that was not obvious, or a defendant whose identity was unknown. Discoverability can extend the period, but relying on it is risky, because the burden of showing a later discovery date falls on the person making the claim.
The ultimate limit
Separately from discovery, there is an ultimate limitation period of fifteen years from the date of the act or omission. After that, a claim is barred regardless of when it was discovered, with limited exceptions for minors, incapacity and certain other situations.
Minors and incapacity
The limitation period does not run against a minor until they turn eighteen, unless a litigation guardian has been appointed for them. It also does not run against a person who is incapable of starting a proceeding because of their physical, mental or psychological condition, for as long as the incapacity lasts. These rules matter in serious injury cases involving children or people with cognitive injuries, but they are not a reason to delay: evidence deteriorates and witnesses move on whether or not the clock is running.
The shorter deadlines that catch people
The two-year rule gets the attention, but the deadlines that most often end a claim before it starts are the notice requirements.
- Municipalities. A claim against a municipality for a fall or injury on a road or sidewalk generally requires written notice within ten days. Late notice is not always fatal, but you will have to show a reasonable excuse and that the municipality was not prejudiced.
- Snow and ice on private property. Claims against occupiers and their contractors for injuries caused by snow or ice now require written notice within sixty days, unless the injury resulted in death. We have written about this and the other slip and fall deadlines in a separate post.
- Car accidents. If you intend to sue after a motor vehicle accident, written notice of your intention must be given to the person you plan to sue within one hundred and twenty days of the accident. You must also notify your own insurer promptly and submit an accident benefits application within a short period after receiving the forms. Disputes over accident benefits decisions must be brought to the Licence Appeal Tribunal within two years of the denial.
- Workplace injuries. Where a workplace injury allows a choice between benefits and a lawsuit, the election must be made within a short period. We have covered the workplace injury process in its own post.
- Claims involving governments and public bodies. Notice and procedural requirements can apply to claims against the province, transit authorities and other public bodies. Assume there is one until you have confirmed otherwise.
Medical malpractice and delayed discovery
Medical claims are the area where discoverability is most often in play, because the harm may not be recognized as avoidable until another provider identifies it. The safest approach is to treat the two years as running from the treatment or adverse event, and to get advice well before that date. Ontario courts have been strict about limitation periods, and a claim started a week late is a claim that will likely be dismissed.
What starting a claim means
The limitation period is satisfied by issuing a statement of claim in court, not by writing a letter, notifying an insurer or negotiating. Settlement discussions do not stop the clock. If a settlement is not reached before the deadline, the claim must be issued, and it can still be resolved afterwards.
What to do
Note the date of the injury and the date of any denial letter, decision or diagnosis that could start a period. Give any required notices in writing and keep proof of delivery. Get advice early enough that a claim can be prepared and issued with time to spare rather than on the last day. If you think a deadline may already have passed, do not assume the claim is over: the discovery rule, the minor and incapacity rules, and the relief provisions for late notice exist for a reason, but they require a careful look.
How we can help
At Kabir & Alam, we assess every new injury matter for its deadlines first, and we issue claims well ahead of them. Read more about our personal injury practice, or book a consultation with us. If your injury was more than a year ago, tell us when you book.
This post is general information about Ontario personal injury law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.