In this case[1], the injured plaintiff started his case 32 days after the expiry of the 2-year limitation period. A summary judgment motion was brought to address the limitation defence.
The plaintiff was injured in a collision on May 18, 2006. He attended with his family doctor 8 days later. He retained a lawyer, and the defendant was placed on notice within a month of the collision. The plaintiff attended massage, physiotherapy and laser therapy in the months that followed.
On this summary judgment motion, the defence argued that under the Limitations Act, 2002 [2], the claim was presumed to be discovered by the plaintiff on the date of the accident.
The plaintiff’s lawyer argued that this plaintiff was not in fact aware of the severity of his injuries (and that whether they would meet the “serious, permanent” threshold) until he learned the results of neurological investigations, which were completed in April 2007.
In dismissing the defendant’s summary judgment motion, Justice Perell outlined the plaintiff’s burden when facing a limitations defence on a motor vehicle claim. The Plaintiff must prove that i) the seriousness of his injury was not discoverable within the limitation period, and ii) he acted with due diligence to discover if there was a cause of action.[3]
Justice Perell confirmed that the plaintiff must behave reasonably in the circumstances to discover the facts relating to the limitation issue.
In this case, the plaintiff only needed to show that he could not have discovered his chronic pain by June 18, 2006 (one month after the collision, and two years before the date the case was commenced).
It is important to note that the requirements in s. 267.5 of the Insurance Act [4] can influence the running of limitation periods for motor vehicle accident claims, and that non-motor vehicle claims may be more easily discovered by a plaintiff within the limitation period.
[1] 2015 ONSC 2119.
[2] S.O. 2002, c. 24, Sched. B, s. 5 (2)
[3] Also see Yelda v. Vu, 2013 ONSC 4973 (CanLII).
[4] R.S.O. 1990, c. I.8.