Claims are sometimes allowed past the deadline defined in the Limitations Act

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In Ontario, the Insurance Act, 1990, governs the motor vehicle accident benefits that are available under Ontario automobile insurance policies, while the Limitations Act, 2002, limits the time in which a person may initiate a court proceeding for a claim. Essentially, there is a time limit on how long an accident victim has to legally file a claim for injury compensation from a car accident, pedestrian accident or another type of motor vehicle accident.

Claims that are initiated past this deadline may be statute-barred for being late. The limitation period is generally two years from the date of the accident or two years from the date when an individual discovers that they have the basis for a claim.

While the latter date often coincides with the actual date of the accident, some injuries and damages that are caused by an accident can take longer to assess. In fact, it may require a significant amount of time to fully comprehend the physical and financial impact of injuries and as a result, a plaintiff may miss the two-year period defined in the Limitations Act.

When this occurs, it is up to a judge to decide whether or not the plaintiff had a legitimate reason for the delay. This was the key issue to be resolved in the 2015 trial, Farhat v Monteanu.

Case example

On May 18, 2006, while sitting in a parked vehicle, Mr. Syed Farhat was rear-ended by another vehicle driven by Ms. Roxana Monteanu.

Mr. Farhat retained legal counsel within 8 days of the accident to represent him in any accident benefit claim and civil suit, and he also sent a letter to Ms. Monteanu informing her that he had sustained serious injuries. However, he did not actually make a claim for non-pecuniary damages against Ms. Monteanu until June 19, 2008 - exactly two years and thirty two days after the accident.

Relying on The Limitations Act, Ms. Monteanu filed a summary judgement to have the claim dismissed on the grounds that the time limit for Mr. Farhat to have made a claim had expired. Mr. Farhat proceeded to file a partial summary judgment of his own to challenge Ms. Monteanu's limitation period defence.

Justice Perell ultimately ruled in Mr. Farhat's favor, granting his partial summary judgement, while dismissing Ms. Monteanu's action. The judge rejected Ms. Monteanu's contention that Mr. Farhat was obligated to prove that he had considered the limitation period but made a conscious decision to not begin action on a claim.

Justice Perell also rejected Ms. Monteanu's arguments that Mr. Farhat was obligated to show that a procedure had been put in place to review the decision to commence an action earlier and also, that he was obligated to show that he made a decision when additional information was received and that his counsel moved quickly with this new information.

Justice Perell noted that there was no case law to support any of the demands Ms. Monteanu placed on the plaintiff. The judge stressed that in fact, the only requirement that the law states with regard to claims being brought after the two-year period as specified in The Limitations Act, is that the plaintiff must show that he/she could not have discovered the seriousness of his/injury within the time limit and that the plaintiff acted with due diligence to discover if there was cause for an action.

Justice Perell concluded that the plaintiff, Mr. Farhat, did just that. The crux of Mr. Farhat's claim is that it is based on chronic pain syndrome, a condition that can sometimes be very difficult to prove, as the condition does not manifest in symptoms that are immediately visible to the naked eye, nor can it be seen in an X-Ray.

Also, particularly as it pertains to this case, chronic pain is almost impossible to diagnose quickly because it may take months, or even years, to determine whether or not the pain the victim is experiencing is merely a temporary result of the accident or a permanent and serious impairment. This is because chronic pain syndrome is essentially defined as pain that lasts an unusually long time.

So, without a sufficient amount of elapsed time coupled with a certain level of pain, it is difficult for a plaintiff to be sure that they are suffering from chronic pain syndrome rather than temporary condition. Taking this crucial aspect of chronic pain syndrome into account, Justice Perell noted that more often than not, it would take time for a plaintiff with a chronic pain claim to truly know for certain if their condition is enough to surpass the threshold set forth by The Insurance Act.

This threshold, as it pertains to non-pecuniary losses such as this one, involves proving that as a direct result of the specific accident, the victim or victims suffered "permanent serious disfigurement" or "permanent serious impairment of an important physical, mental or psychological function."

In his determination, Justice Perell referenced the Ontario Superior Court decision in Hoffman v. Jekel, which states that a "person cannot be expected to commence an action before he or she knows that the necessary elements as set out in the legislation can be established on the evidence." In other words, it is unreasonable for the defence to expect the plaintiff to move forward with a claim, without first knowing that there is sufficient reason for one. Doing so would only increase the plaintiff's chances of having their claim dismissed in its early stages.

Justice Perell also referenced Justice Langdon's decision in Ioannidis v. Hawkings, where it was stated, "When one is seeking to apply the discoverability rule to the plaintiff in a case such as this, it behooves the court to grant a degree of latitude to a plaintiff before declaring that the limitation period has begun to run." Justice Langdon also noted that the question is not simply whether or not a plaintiff believes their injury meets the threshold criteria but whether or not there is enough evidence to reasonably convince a judge that it in fact meets this criteria.

Taking all of these arguments into consideration, Justice Perell ultimately dismissed Ms. Monteanu's summary judgement to have the claim dismissed on the basis of it being statute-barred. The discovery period, wherein counsel for a person who was injured in an accident gathers all the necessary evidence for a personal injury claim, is crucial to the success of a claim. The sooner one begins, the better the opportunity for building a solid case and the less likely the limitation period will be violated.

Of course, sufficient time must have passed to properly assess the extent and permanence of injuries and impact on the accident victim's life.

Contacting a personal injury lawyer as soon as possible in the aftermath of an accident is essential to this process and in making an informed decision about the adequacy of medical and financial evidence supporting a claim.

Gluckstein Personal Injury Lawyers have represented accident victims and their families in successful claims for injury compensation for many years. In addition to experience and expertise, you can expect honest and sound advice on the strength of your claim and what it takes to win your case.

If you or someone you love has been seriously injured, call our office to arrange a no-obligation appointment to discuss and assess the unique circumstances of your case.

Let us handle the process of building and successfully settling your claim, so that you can concentrate on recovery and rehabilitation.


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