Toronto Injury Lawyer Blog
It’s best to get started with your personal injury case sooner rather than later.
It makes no sense to wait around. I have yet to hear a viable excuse as to why a Plaintiff waited to retain a personal injury lawyer and start their case.
I can contemplate a scenario where a seriously injured accident victim would have to wait to start their personal injury case. That scenario exists where the Plaintiff is so injured that they can’t use a phone or internet to reach out to a personal injury lawyer. A Plaintiff could be in a coma, (like a medically educed coma) following a serious accident. Where a Plaintiff isn’t conscious, or simply too injured to get his/her claim started, then a delay would make a bit of sense. Still, the law doesn’t care. I haven’t seen a case where a Plaintiff is in a coma for 2 years from the date of their accident. That doesn’t really happen. 2 years is a very long time to be left in a coma following an accident. During that long period of time, the accident victim would likely have a Power of Attorney appointed to make decisions. If there is no Power of Attorney, or next of kin, it’s likely that the Office of the Public Guardian and Trustee would get involved in order to protect the rights and the interests of the comatose accident victim.
But the law really doesn’t care. In most personal injury cases, the Plaintiff has 2 years from the date of loss to sue. Failure to commence a claim prior to the 2 year mark will likely result in the case getting dismissed.
In some matters, such as cases against a City, Town or Municipality; the accident victim must provide written notice within just 10 days from the date of loss.
For slip and fall or trip and fall cases against a private property owner, written notice must be provided within 60 days from the date of loss. Check out the amendment to the Occupier’s Liability Amendment Act:
Notice period — injury from snow, ice
6.1 (1) No action shall be brought for the recovery of damages for personal injury caused by snow or ice against a person or persons listed in subsection (2) unless, within 60 days after the occurrence of the injury, written notice of the claim, including the date, time and location of the occurrence, has been personally served on or sent by registered mail to at least one person listed in subsection (2).
The notice must be in writing, and must include the date, time and location of the slip and fall. The notice also needs to be personally served or sent via registered mail as well. These notice provisions are onerous on a Plaintiff. Most people don’t know about them. The reason they are so onerous is because they want to make it difficult for these sort of claims to succeed in order to keep claims down and insurance premiums for private property owners lower. As a private property owner, I have yet to see these sort of savings being passed along to the consumer whatsoever, but that’s a topic for another day. Once the notice has been served, the Plaintiff has 2 years from the date of loss (not the date of notice) to sue. Again, failure to issue a claim in Court before that period of time will likely result in the claim getting dismissed on account of failure to meet the statutory limitation period.
There are other cases where the 2 year limitation period will vary.
Medical malpractice cases are an example. It’s sometimes very hard to tell when the limitation period will trigger. Defendants will always argue for the shorter limitation period to be the one which ought to be used. Plaintiffs will argue the opposite. If the limitation period is an issue, then it will be up to the Court to decide which one to apply. In medical malpractice cases, it’s sometimes difficult to determine what the triggering event was. When is the first time which the Plaintiff knew, or ought to have known that s/he had a cause of action against the prospective Defendants. This can be a really hard question to answer. Unlike in a car accident, where the triggering event in most cases is the car accident; in medical negligence cases, it’s very difficult to tell what that triggering event was, or it’s very hard for a Plaintiff to detect the triggering event/moment giving rise to the claim. Often, it takes months, or sometimes years for a Plaintiff to know or understand what the triggering event was because it’s not so clear when it first happens.
The other instance where limitation periods can be more lenient is when it comes to the involvement of minors. The clock for minors doesn’t start to tick until they’ve hit 18 years old. Hypothetically, the minor won’t have to commence an action until they’re 20 years old.
The final instance where limitation periods are more flexible is when it comes to sexual assault cases. The limitation period for sexual assault cases has been eliminated. This means there is NO LIMITATION for a sexual assault claim. Why is this you ask? It’s really hard for a victim of sexual abuse to step forward and have their story told and heard. They might have years of pent up trauma, fear, anger, resentment and other emotions which we would never be able to comprehend. We want to encourage people speaking out to make sure that such atrocities see the light to justice and don’t happen again. It takes a lot of strength to speak up and to share one’s story. This is why Courts are more lenient with these sort of cases. We often see this in historic sexual assault cases. Student vs. Teacher. Parishioner vs. Priest. Patient vs. Doctor. It would be against public policy and public interest to lock these brave litigants out of the Courts on account of their fear of speaking out in time to have their cases heard. It’s important to give these people their day in Court and not to have these claims dismissed based on a technicality.
