A personal injury caused by an accident, regardless of the nature of the incident, is a traumatic and devastating experience for the injured person and their loved ones. It is crucial to start your recovery but also to hold negligent individuals accountable and help safeguard your future.

The statutory limitation period, also known as the statutory time limit, is extremely important to keep in mind when filing a personal injury claim. If you do not commence your action within the statutory limitation period, you may be barred from bringing the claim and obtaining compensation for your injuries.

This article reviews the statutory limitation period and looks at a recent Ontario Superior Court of Justice decision in which a plaintiff was prevented from bringing her medical malpractice claim because she missed the statutory deadline.

What is the statutory limitation period?

Pursuant to section 4 of the Limitations Act 2002 and subject to exceptions, a proceeding must be commenced by the second anniversary of the day on which the “claim was discovered”. 

Section 5(1) sets out a complex test for determining the day on which the claim was discovered. 

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)

Per section 5(2), the plaintiff is presumed to have known of the four matters on the day the act or omission took place unless the contrary is proved.

Statutory time period begins before liability is certain

The statutory time period can begin running before the plaintiff has a clear sense of legal liability on the wrong-doers part. It is not necessary for the plaintiff to know that the defendant owed them a duty of care or that the defendant breached the standard of care by the act or omission.

The Limitations Act refers to the knowledge of a reasonable person; therefore, the clock begins to run when the evidence shows the plaintiff ought to have discovered the material facts based on reasonable diligence.

Consequently, if you have been injured and suspect that someone else may have been at fault, it is imperative that you seek legal advice to preserve the opportunity to file a claim.

Plaintiff commences action many years post-surgery

In Bosse v Karas, the plaintiff underwent a series of radial keratotomy (RK) operations between 1994 and 2005 to correct her eyesight. These were performed by the defendant’s ophthalmologist. Before the operations, she could achieve the perfect vision by using corrective lenses, but post-surgery, she could not do this and experienced periodic fluctuations in her vision.

In 2011, an optometrist told the plaintiff that her corneas were deformed due to the RK operations. She refused the defendant’s offer of a further surgical procedure and instead filed a complaint with the College of Physicians and Surgeons of Ontario (CPSO), alleging that she was not told of the risks of the operations or possible effects. The next year, the CPSO imposed restrictions on the defendant’s ability to perform the surgery.

In 2013, the plaintiff retained a lawyer and saw another doctor, who opined that the incisions made in the plaintiff’s eyes by the defendant were “outside the standard of care”. In early 2014, the plaintiff hired another lawyer, who commenced court proceedings in April.

Defendant sought dismissal of the action due to missed statute of limitations

The defendant sought to have the proceedings dismissed on the basis that the plaintiff’s claim was statute barred from being brought after the expiry of the limitation period.

The plaintiff argued two separate claims. Firstly, she claimed that the defendant failed to advise her of the risks of the surgery or its side effects, which was the basis of her complaint to the CPSO. Secondly, the plaintiff claimed that the defendant breached the standard of care owed to her during the eye surgery. She argued that she was not aware of this claim until she consulted with the other doctor in 2013.

Court rules plaintiff’s action was statute barred

Justice Smith found that in 2011, at the time of her complaint to the CPSO, the plaintiff had actual knowledge of the material facts upon which a plausible inference of liability on the defendant’s part could be drawn:

She knew that her eyes had been “essentially destroyed”; she knew that was not the result of natural causes but rather was the result of the RK surgery and subsequent enhancements, and further, she knew that it was the defendant who performed the RK surgery and subsequent enhancements.

His Honour also considered that the plaintiff knew, or ought to have known, that a proceeding would be an appropriate means to seek a remedy because, amongst other reasons, she had retained a lawyer in 2013, which was before the expiry of the two-year limitation period. As a result, his Honour found the uninformed consent claim was statute barred as it was commenced in 2014, outside the two-year period.

His Honour also dismissed the plaintiff’s standard of care claim, explaining that the plaintiff did not need knowledge that the defendant’s acts breached the standard of care in order to understand that she had a plausible cause of action against the defendant. 

Contact the Personal Injury Lawyers at Tierney Stauffer LLP

At Tierney Stauffer LLP, we understand how overwhelmed you may feel at the prospect of starting your personal injury claim. Our personal injury lawyers have extensive experience handling personal injury claims throughout Ontario, so it’s imporant you seek prompt legal advice from our personal injury law team. Call us at 1-888-799-8057 or reach out online to set up a consultation today.  


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