Delayed Discoverability - When does the Limitation Period Start?

Whenever you can sue there is almost always a Limitation Period that will be running. If you don't start your lawsuit within that time frame your right to sue will expire.

In Ontario the Limitations Act, 2002 in section 4 provides that an action shall not be commenced after the second anniversary of the date upon which the claim was 'discovered'. Discoverability is therefore an important issue especially where there is uncertainty as to when the claim reasonably ought to have been discovered.

Section 5(1) of the said Act provides some guidance to the courts. It says that "A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew....... (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 know of the matters referred to in clause a.

While the right to sue requires knowledge of all factors in 5(1)(a) or reasonably out to have know of the factors under 5(1)(b) which can excuse some delay, the Plaintiff must act with due diligence which includes obtaining a medical opinion if circumstances are of a sufficiently suspicious nature. See Soper v. Southcott(1998), O.R. (3d) 737.

Discoverability is largely a fact based exercise. Did the Plaintiff know the identity of the potential Defendant, the facts which ground liability. In car accident cases the severity of the Plaintiff's injuries is an important factor as the injuries must be severe and permanent to permit a lawsuit.

This has been confirmed to be a factor in considering discoverability by the Ontario Court of Appeal in Everding v. Skrijel, 2010 ONCA 437. Similarly in Huang. V Mai 2014 ONSCREEN 1156. Therefor the passage of two years from the accident date is not necessarily the end of the potential lawsuit. Was a lawsuit the "appropriate means to a remedy".

Obviously a lay person can't know of the threshold assessment in car accidents without some help. The courts generally provide some degree of latitude.

Accordingly if you have been in an accident you should retain counsel with expertise in this area to determine if you might meet the serious and permanent injury threshold. This should not be left to the last moment especially if you have severe injuries or injuries that affect your ability to work or undertake ordinary activities of daily living.