Limitation Periods for Personal Injury Lawsuits in Ontario

Earlier this month, an Ontario medical malpractice case, Odede v. Tartaro, was dismissed by the province’s Superior Court of Justice because the plaintiffs initiated the action 11 months outside the statutory ‘limitation period.’ This blog will look at how limitation periods work for different forms of personal injury lawsuits in Ontario, exceptions to the basic limitation period, and the specifics of Odede v. Tartaro, which show that applying limitation period rules isn’t always straightforward.

What is a Limitation Period?

Simply put, a limitation period is the timeframe within which a plaintiff may initiate a claim for an injury, loss, or damage resulting from another party’s negligent action or omission. Here’s how Ontario’s ‘basic limitation period’ is described in the Limitations Act, 2002:

“Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”

Generally, the ‘discovery’ date is whichever of the following arrives first:

• The day on which the person with the claim first knew that the injury, loss or damage had occurred
• The day on which the person with the claim first kneow that the injury, loss or damage was caused by or contributed to by an act or omission
• The day on which the person with the claim first kneow that the act or omission was that of the person against whom the claim was made, and
• The day on which the person with the claim first kneow that legal action would be appropriate means to seek remedy

In other words, plaintiffs in most personal injury lawsuits have two years from the time that they know they are able to file a claim to initiate legal action.

Exceptions to the Basic Limitation Period

There are several exceptions to the rules listed above, including the following:

• In Ontario, claims against the province or a municipality are treated very differently than those against other parties. In these cases, plaintiffs generally have just 10 days from the date of the accident to initiate legal action. provide written notice of claim, including the date, time, location of the incident
• When an injury victim is under 18 at the time of the accident, the limitation period will not begin until the day they turn 18.
• New rules brought into force this year under Bill 118, Occupiers’ Liability Amendment Act have drastically reduced the limitation period for initiating slip and fall claims. Learn more about these changes here.

Odede v. Tartaro

On May 6, Canadian Lawyer reported that the Ontario Superior Court of Justice had ‘denied further adjournment and granted a motion for summary judgement relating to an action for damages for medical negligence, ruling that the action was initiated eleven months beyond the statutory limitation period.’

The plaintiff in the case had a colonoscopy and polypectomy on November 22, 2012, to address rectal bleeding. Almost immediately after the procedure, he began to experience pain and a fever. A subsequent scan revealed a perforated colon, and on November 24, 2012, the plaintiff underwent a colectomy.

Two years and 11 months later, on October 19, 2015, the patient and his wife launched a claim for damages caused by medical malpractice by the doctor that performed the colonoscopy and the medical centre where the procedure occurred. As a result of the November 24 surgery, the plaintiffs alleged, the patient had to delay a business trip to Nigeria. He also experienced relapses and an inability to conduct business, suffering financial losses as a result. The defendants denied all wrongdoing.

Several years later, in June 2019, the defendants delivered an expert witness report stating that the doctor’s actions had complied with Ontario’s standard of care. The report also stated that the colectomy was not the proximate cause of the damages alleged by the plaintiffs. The defendants requested an expert report from the plaintiffs, which was never produced.

In July 2020, the defendants finally submitted a motion to dismiss the plaintiffs’ actions because the lawsuit had been initiated outside the statutory limitation period. The motion to dismiss also noted that the plaintiffs had failed to provide a report substantiating their claims.

The plaintiffs sought and obtained an adjournment, stating that the patient had travelled to Nigeria to collect evidence and was unable to return to Ontario due to the COVID-19 pandemic. The defendants requested a timeframe for rescheduling the motion and, when they didn’t receive it, unilaterally scheduled a date in March 2021.

The plaintiffs then sought an additional adjournment, stating that they were seeking medical records and opinions to show that they ‘did not know the material facts giving rise to the claim as of Nov. 24, 2012,’ Canadian Lawyer reported, and that the limitation period should be restarted from the time that knew of additional damages.

The Superior Court rejected the submission, ruling that, because their statement of claim identified damages as of November 24, 2012, the identification of additional damages was irrelevant. The plaintiffs’ claim was thus dismissed.

Contact Will Davidson LLP

If you’ve been injured in an accident, contact Will Davidson LLP to discuss your options. Personal injury lawsuits can help seriously injured accident victims access compensation to fund their recoveries and recoup damages. Reach out today to learn more.

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