If you are injured in a collision, slip and fall, or another accident, when is it too late to file a civil suit against the negligent party responsible for your injury? The short answer is two years after the accident.

However, injuries don’t necessarily follow a consistent pattern of healing and every person recovers at a different rate. Also, some types of injuries may result in secondary injuries, such as chronic pain syndrome or post-traumatic stress disorder, which take their own path of recovery. For these reasons, a person may not become truly aware that they have a permanent injury until more than two years after their motor vehicle accident or slip and fall.

In Ontario, the Limitations Act defines the deadline for a person to commence a claim for injury compensation. The limitation period is two years from the date a person discovered that they have a basis to make a claim, which generally coincides with two years from the date of their accident. However, sometimes injuries take a long time to assess or a person may not realize the extent of their injuries until they have suffered for years with symptoms that they had believed would subside. In such cases, when someone doesn’t fully realize the severity and impact of their injury for more than two years after an accident, while they may be challenged by their insurer for having missed the two-year deadline, they could, in fact, still be eligible to file a claim.

In deciding whether or not a claim will be allowed after the two year limitation period, a judge will consider whether the claimant could reasonably have discovered the severity of their injury within the time limit, and also, whether they acted with due diligence to determine if they had grounds to file a claim.

Chronic pain syndrome (CPS) is an often debilitating condition that can stem from soft-tissue injury or another injury suffered in an accident. Chronic pain syndrome is, by its very definition, pain that is prolonged beyond the time one would expect to still be suffering. In Farhat v Monteanu, a man developed chronic pain syndrome after he sustained injuries in a rear-end collision, but did not file a claim until 2 years and 32 days from the accident.

The defendant, in this case, filed a summary judgement to have the claim dismissed for being past the limitation period and thus, statute-barred. However, the judge ruled in favour of the plaintiff (and dismissed the defendant’s action) and acknowledged that it was reasonable that it took some time for the plaintiff to realize his symptoms were serious and permanent, and to understand the full extent of his loss.

In Burke-Smith v. Sun, another case involving injuries resulting from a motor vehicle accident, the plaintiff did not file a claim for non-pecuniary damages (for pain and suffering) until more than 4 years after her accident.  In this instance, the injured woman was unable to return to work after being injured and at that time, she claimed for, and received income replacement benefits from the insurer for the vehicle in which she was a passenger.

The medical professionals recommended by the insurer told her that she was recovering and had not sustained injuries of a permanent serious impairment of an important physical, mental or psychological function, which is the threshold for eligibility for non-pecuniary damages. After continuing to experience serious and persistent migraine headaches for years, the woman consulted with independent medical practitioners, including an orthopaedic surgeon. She was diagnosed with damage to her cervical spine, which triggers her headaches and limits her ability to participate in recreational activities, take care of her young child and continue in her career.

In Burke-Smith, the injured woman filed a claim for non-pecuniary damages but the defendant sought a summary judgement to dismiss the woman’s claim arguing that the plaintiff knew that she had suffered a loss immediately after the accident, and this realization triggered the two-year limitation period.  However, the judge dismissed this argument and the defendant’s action because a potential claim for non-pecuniary damages for serious and permanent injuries cannot be trumped by the right to sue for financial losses (such as loss of income) which have no threshold requirement.  The judge concluded that there was no evidence that the plaintiff failed to diligently assess the seriousness of her injuries and acknowledged that she pursued her claim as soon as she discovered that her injury was serious and permanent.

Although there are circumstances in which a claim will not be statute-barred despite being commenced more than 2 years after an accident, a claimant should always take all reasonable steps to have their injury fully assessed as soon as possible.  At Burn Tucker Lachaîne, our experienced lawyers will give you an honest assessment of your case and offer advice on the best steps to take in having your injuries properly assessed.  We have an excellent relationship with many knowledgeable medical practitioners in our community and together, can facilitate your recovery and the gathering of strong medical evidence to support your claim.

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