A limitation period is the time a person has to start a court action.
In Ontario, most but not all, limitation periods are two years. If you miss the two years and don’t start the court action then you lose all or your rights.
The important question is when do those two years begin to run? It used to be that the two year period began to run from a fixed date. For example, in a car accident claim time began to run on the date of the accident.
But then the law changed. Now the two years begins from the date you knew or should have known that you had a claim. The new law makes it possible to extend the the limitation period beyond two years from the date of a fixed event. For example, today in Ontario as a result of a car accident you are only entitled to sue for pain and suffering if you were not at fault and if you suffered a permanent and serious physical or psychological impairment. For minor injuries where a person recovers there is no entitlement to damages for pain and suffering.
Sometimes, after a car accident the innocent victim does not know how seriously they are injured or whether they will recover. So when does the two years begin to run?
Recently the Court of Appeal decided a case where the innocent victim in a car accident started the court action almost three years after the date of the accident. The victim argued that he did not know that his injuries were permanent and serious until almost three years after the accident. The defence argued that the claim was out of time and the judge agreed. The victim appealed but the Ontario Court of Appeal agreed with the judge and dismissed the appeal.
Why was this victim not successful? Because the court decided that he should have know much earlier that his injuries were serious enough and that he had a legitimate claim. In other words you cannot bury your head in the sand and hope for the best. You need to take active steps to investigate and try to figure out whether you would meet the threshold to sue.
I always tell my clients that it is better if we start the court claim within two years from the date of the accident. This way there is no doubt that the claim was started in time. Otherwise we could be at the mercy of a judge – and that is not a always a good place to be.