“Time is of the essence.”
Official dictionary definitions include:
- said to encourage one to hurry
- emphasizing something should be done as soon as possible
This phrase is used in many areas of law in Ontario. When it comes to filing a personal injury claim, it refers to the Limitation Period, set out by the Limitations Act of Ontario, that establishes a time limit as to how long you have to file that claim. In most cases, that limitation period is 2 years.
That might sound like a lot of time, but when it comes to the most important factors of having a sound case — evidence, witnesses, research — Time is, indeed, of the essence.
A Personal Injury lawyer will advise a client to initiate a claim against the at-fault party as soon as possible after the accident. Let’s expand on the key reasons:
- Evidence: The sooner you are able to gather & preserve evidence while it’s still available, the stronger your case will be.
- Witnesses: Finding and interviewing witnesses in short order can be crucial, to ensure they are best able to recall the circumstances around your accident, providing your lawyer with the most accurate information.
- Building Your Case: Allowing your lawyer to have ample time to conduct research, obtain medical records and expert reports, as well as speaking with health professionals will allow your case to be built methodically and properly.
So when does the limitation period begin? Most commonly, the basic two-year period begins on the date of the accident. But this isn’t always the case:
What if the victim isn’t aware of their injuries until a later date? In this case, Section 5 of the Limitations Act provides that the limitation period begins on the date one “discovers” the injury — or should reasonably have discovered it.
In the motor vehicle context, where the injured party must establish that they have suffered a serious, permanent impairment — the “Threshold” — the two-year limitation period will begin to run on the date the injured party discovered or ought to have discovered the facts supporting the existence of a Threshold injury.
Exceptions to the Rule
As with many parts of the judicial system in Ontario, there are often notice requirements that must be met, in addition to the two-year rule. Many, in fact.
For example, a claim against a municipality for ice on a city sidewalk or disrepair of a highway will usually have only a ten-day notice period in which to serve notice of a claim. These can include incidents such as slip-and-falls, or car accidents caused by road defects or the accumulation of the afore-mentioned ice and snow on roadways that are due to the municipality’s failure to comply with the minimum maintenance standards.
A similar ten-day notice requirement would apply to the Province of Ontario for disrepair of a provincial highway.
It is important to note that the two-year rule would not apply where the injured party is either a minor (under the age of 18), or is physically, mentally or psychologically unable to initiate an action.
In the case of a minor, the two-year limitation period would not begin to run until the minor attains the age of 18 years and who has otherwise not been represented by a litigation guardian. However, the law in Ontario provides that there is an ultimate limitation period of 15 years.
Covid-19 and Limitations
In 2020, yet another major exception exists: As of March 16, 2020, Ontario has suspended all limitation periods due to the pandemic. This suspension is currently extended until September 11, 2020.
With normal societal activities on hold or greatly minimized, the government has recognized the difficulty defendants and their lawyers face in properly pursuing a case:
Commencing a court action: With normal court operations still severely restricted and court offices not yet fully open for non-urgent filings, this has been problematic, unless your lawyer has access to the on-line portal.
Serving a Statement of Claim: Social distancing requirements and even the fear of many of using elevators and attending public offices all makes the requirement of personal service difficult.
Pandemics aside, however, it’s always best to contact an experienced personal injury lawyer as soon as a serious injury has occurred (or been “discovered”), so that you have the best opportunity to advance your claim.
Horowitz Injury Law has nearly 35 years’ experience of ensuring clients get the compensation they deserve. Call 416-925-4100 now for a free consultation. Remember, time is of the essence.