LETTER OF THE LAW: Stretching Ontario’s limitation period
A couple of recent cases from our Court of Appeal confirm that a limitation period can be stretched beyond the usual two years, but only if it would not be appropriate for a plaintiff to start the legal action earlier.
In Ontario, the Limitation Act, 2002 governs the time limits for when a legal action needs to be filed. In most cases the usual rule is that a civil action must be filed within two years of when the event occurred.
However, the two-year time frame will not start until the claim is “discovered”. Section 5 of the Limitations Act, 2002 states:
5.(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
5.(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved
The two recent cases from the Court of Appeal addressed s. 5(1)(a)(iv), or when, “having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it”.
This means that the two-year limitation period does not begin to run until the plaintiff knew or ought to have known that a legal proceeding would be appropriate means to seek a remedy.
The first case from the Court of Appeal was Brown v . Baum 2016 ONCA 325, a medical malpractice case.
The plaintiff, Ms. Brown, had a breast reduction surgery performed by the defendant, Dr. Baum. She did not believe the surgery went well. In fact, the surgery did not go well.
Dr. Baum continued to treat Ms. Brown and attempted to correct the errors. He performed further surgeries to try and fix the original surgery.
The original surgery was performed on March 25, 2009. Dr. Baum performed his final surgery on Ms. Baum on June 16, 2010. Ms. Baum started her legal action against Dr. Baum on June 4, 2012. Dr. Baum brought a motion for summary judgment asking that Ms. Brown’s case be dismissed for being out of time.
The motions judge refused to dismiss the action, reasoning that, “it would be unreasonable and inappropriate…to start the two-year limitation clock running against Ms. Brown while the defendant’s good faith efforts to achieve a medical remedy continued.” The Court of Appeal upheld the motion judge’s decision.
The second case is not helpful for the average person but upholds the principle from Brown v. Baum.
The Court of Appeal in the decision, 407 ETR Concession Co. v. Day 2016 ONCA 709, re-confirmed the principle that the two-year limitation period will not begin to run until “a proceeding would be an appropriate means” to remedy the loss or damage.
In this case, 407 ETR did not start collection proceedings until more than two years after the driver had failed to pay the toll charges. The reason for the delay is that 407 ETR had expected that the defendant would pay the toll charges when he renewed his licence plate. Approximately 75 percent of owing drivers pay up when the plates have to be renewed.
The Court of Appeal ruled that, “A civil action only becomes appropriate when 407 ETR has reason to believe it will not otherwise be paid - in other words, when the usually effective licence plate denial process has run its course.”
What do these cases mean for you? If you have suffered an injury or loss more than two years ago, you still may be able to bring a legal action for compensation.
This is particularly the case if the injury was caused by a doctor who continued to treat you.
If you have suffered an injury or loss, even if you think you might be out of time, consult with an experienced personal injury lawyer just in case.
Kristian Bonn is a personal injury lawyer and partner at Bonn Law. He grew up in Trenton, works in Belleville and Trenton and lives just over the Bay Bridge in Prince Edward County.
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