You May Not Be Out of Time
By: Hannah Robins, Lisa Fraser and Sarah Kirshin-Neilans
Limitations Periods When Severely Injured: You May Not Be Out of Time
When you have been seriously injured as a result of an accident, you might look to the legal system to initiate a claim. However, personal injury lawsuits are subject to a general limitation period which restricts the time you have to file a lawsuit. Failure to file within the limitation period could mean you lose the opportunity to file your claim all together. In Ontario, the legislation that dictates limitation periods for personal injury claims is the Limitations Act, 2002. Under the Limitation Act, you have two years to bring most personal injury claims. However, there are some rare exceptions to this two year time limit. One of these exceptions is established in section 7(1) of the Limitations Act. This section states that the two year limitation period does not run during any time that an injured person is incapable of commencing a proceeding because of their physical, mental, or psychological condition, as long as they are not represented by a litigation guardian.
When making a claim under section 7(1), the injured party has the responsibility of proving that they were incapacitated. The court in Enns v Goertzen, 2019 ONSC 4233 stated that while medical evidence and expert medical reports are often the most compelling and expedient manner to prove that an injured party was incapable of bringing a claim, they also stated that circumstantial narrative evidence may also prove incapacity. For example, they stated if a person with a claim was unconscious while in a coma for a prolonged period of time, expert medical evidence would not be necessary to establish that the injured person was incapable of commencing a proceeding while unconscious.
Family members of someone who is injured can contact a lawyer to seek legal advice on their relative’s behalf, even if their family member lacks capacity. A personal injury lawyer will be able to assist in explaining the injured person’s rights and about commencing insurance claims that may cover the cost of treatment and care for their loved one.
In summary, if someone is severely injured, depending on the extent of their injuries, the limitation period could be suspended until they are no longer incapacitated. What this means is that if you were severely injured to such an extent that you were unable to commence a claim within the time allowed, you still may be able to bring a claim even after the two-year window has expired. However, the limitation period is only suspended for the period of time that a person is found to be lacking capacity. Therefore, it is important that you don’t wait to consult a personal injury lawyer if you experienced incapacity or were hospitalized due to your injuries.
Hanna Robins is an Articling Student with McKenzie Lake.
Lisa Fraser and Sarah Kirshin-Neilans are lawyers with the Personal Injury Team.
For more information, please visit www.mckenzielake.com