How long do I have to sue? – Understanding the limitation period in Canada
How long do I have to sue? – Understanding the limitation period in Canada
It’s not uncommon to see victims of abuse come forward decades after the incident occurred. Sometimes they may lay criminal charges against the perpetrator or a civil lawsuit to get compensated for their losses. Even though there are limitation periods for such cases, there are exceptions that the court can give and allow the victim to proceed with the lawsuit long after the abuse took place. To start with, there is no statute of limitations that bars the prosecution from bringing forth criminal charges at any time after the offence has been committed. The law allows anyone to contact the police and report a crime that occurred in Canada years ago. The police will go ahead with the investigations and lay charges against the accused. If sufficient evidence is found years later, the person found guilty of the offence will be convicted.
What is a limitation period?
A limitation period is a time within which the aggrieved person must bring a claim. In Canada, limitation periods apply to civil lawsuits. In a personal injury lawsuit, the period defines the time in which an injured party can initiate a claim to get compensated for losses that occurred as a result of another party’s negligence. The rules on the limitation period may vary from province to province.
The basic limitation period in Ontario
The Limitations Act, 2002 defines the provisions on the time limits for filing a civil suit. The basic rule is that claims can only be commenced within two years from the date of occurrence of the event. This basic limitation period of 2 years has some exceptions. For instance, if the claimant suffered injuries or damages and would like to bring a claim against a province or municipality in Canada, the notice of such a claim must be given within 10 days from the day of the injury or accident. It’s also important to note that the date when the limitation period starts may vary from case to case. It may not be the exact date when the accident or injury occurred. For instance, if a medical negligence victim doesn’t have any physical injuries that manifest immediately after the incident, the date when the limitation period starts can be when it first becomes clear that the party caused or contributed to their injuries.
What if you pursue a claim on behalf of a loved one?
In cases where the claimant is a family member who pursues the claim on behalf of their loved one, the duration of the limitation period still applies. Family members and litigation guards often pursue claims that involve wrongful death. Sometimes the victim has suffered serious injuries or even a disability, is a minor or mentally/psychologically incapable of pursuing the claim. In such claims, the date when the limitation period starts can be the day when:
- The loved one or litigation guardian knew of the matter that gave rise to the claim.
- The one who makes the claim knew of the claim or would have known of the claim.
Who is a litigation guardian?
Litigation guards may be parents, spouses or family members who are natural guardians of the claimant. This may also refer to any person who would like to represent the injured person so long as they swear an affidavit that states he/she doesn’t have any interests adverse to those of the person whom he/she is representing when contesting the claim.
What is notice of possible claim?
The notice of possible claim can help the court to determine when the limitation period started to run. For instance, if you or your lawyers are still in the process of gathering evidence to support the claim, you may file the notice of possible claim, which helps to protect you in case the basic limitation period expires.
5 things you need to know about the notice of possible claim
- The notice has to be issued in writing.
- The notice must clearly describe the nature of the injury, loss or damage that occurred or is suspected of having occurred.
- The notice must also identify the act or omission that resulted in the injuries, losses or damages.
- The notice must give an indication of the extent to which the issuer suspects the losses may have been caused by their own actions.
- The notice must also provide details on the issuing person’s name and address.
Once the party being accused receives the notice of possible claim, they are required to file a response or risk summary judgment by the court. If the injured party, together with the party being held liable, can agree on having an independent third party resolve the case, the limitation period is paused.
Timelines for motor vehicle accident claims
If involved in a motor vehicle accident, first, you must notify your accident benefits insurer within 7 days of the accident. You will then be expected to complete the accident benefits application within 30 days of the accident. If denied benefits, you have 2 years from the date of the accident to sue or arbitrate against your insurer. You must also give written notice to the at-fault driver within 120 days from the date of the accident. If filing a lawsuit against the at-fault driver, you must submit your application within 2 years from the date of the accident. If suing for loss or damage of a vehicle, you have 1 year from the time of the accident to file your claim. Check your insurance contract for more details on the timelines for suing. For fatal accidents, family members or a representative of the deceased must file a wrongful death suit within 2 years of the accident unless a shorter limitation period applies. Limitation periods for personal injury claims against the city If you are bringing a personal injury claim against the city, you have to adhere to the 10-day written notice of a claim which is set by the Municipal Act, 2001 and the Stronger City of Toronto for a Stronger Ontario Act, 2006. There are exceptions that can be allowed by the court but are not outlined in the provisions. For instance, if the injured person was unable to provide notice due to the extent of their physical and mental injuries, the court can grant an exception.
Limitation period for slip and fall accidents
Slip and fall accidents on private (non-government) property have the same basic limitation period of two years. If the person was injured in a slip-and-fall accident on municipal property (e.g. a city sidewalk), they are required, by s. 44(10) of the Municipal Act, 2001, to provide written notice of the potential future claim within ten (10) days of the fall if they wish to preserve their ability to make a claim within the two-year limit. Should they fail to do so, their future claim may be statute-barred. On December 8, 2020, Bill, 118, the Occupiers’ Liability Amendment Act, 2020, received royal assent. This Act amends the Occupiers’ Liability Act and imposes new requirements on persons injured in slip-and-fall accidents caused by snow or ice. The amendments now require a person injured in a slip and fall as a result of snow or ice to provide written notice of their claim by personal service or by registered mail to the occupier or independent contractor within 60 days of the fall. The amendment allows for some exceptions. The sixty-day notice period does not apply if the slip-and-fall accident caused the death of the person involved. In addition, if a court finds that there was a both a reasonable excuse for failure to give notice within the sixty-day notice period and the defendant was not prejudiced in its defence, then failure to give notice within sixty-days will not bar the injured person’s claim. The notice will have to include the date and time the incident occurred as well as the location. It is imperative that a lawyer assist with identifying the at fault occupier and contractors to ensure they are placed on notice within the strict time constrains and the claim is not barred.
Exceptions that apply to the 2-year limitation period
If a claim is based on assault or sexual assault, the courts may consider that the claimant was physically or mentally incapable of starting any action. If the case involves assault, the courts may consider that the claimant was unable to report because of the dependent or intimate relationship with the alleged perpetrator. Sexual assault cases are often not time-barred because the courts assume that the claimant could not report or commence any action due to several justifiable reasons.
How a lawyer can help
Limitation periods should never be ignored. Even when you have a strong case, your claim is likely to be denied once the limitation period expires. The court has no discretion to extend the limitation period even though the injured party had unusual circumstances that prevented them from filing a claim. It’s therefore crucial that you talk to a lawyer as soon as possible regarding any potential claim. When you hire our lawyers, we fight for the best possible outcome for your case. We always perform in-depth investigation and research in order to advise on the appropriate action and reduce time and expenses for our clients. We come with extensive litigation experience in personal injury cases. When you come to us, you’ll get strategic, practical, and well-thought legal advice that maximizes your chances of a successful outcome. If settling outside of court is not advantageous to our client, we are experienced at trial and throughout the litigation process.