We have a limitation act that does not allow any proceedings after 2 years, but that didn’t stop us from fighting for our client (TM). In this case, the claimant had an accident on December 19, 2012, and back in August of 2017, we won this motion and recently got a decision. We argued that TM believed that she would heal and the judge allowed her claim to proceed.
Take a look below to better understand how it all worked out.
S. 4 of the Limitation Act states that a proceeding shall not be commenced in respect of the claim after the second anniversary of the day in which the claim was discovered. One of the dates when a claim will be deemed to have been discovered is the day on which the person knew that a proceeding would be an appropriate remedy due to the nature of the injury as per s. 5(1)(a)(iv) of the Limitation Act.
The other day on which the reasonable person ought to have to have known that a proceeding would be an appropriate remedy due to the nature of the injury as per s. 5(1)(b) of the Limitation Act. The presumption is that this date will be the date of the injury as per s. 5(2) of the Limitation Act and the plaintiff has to rebut that this presumption is incorrect.
We argued these points:
It is submitted that over the course of 4 years, TM genuinely believed that she was only suffering from soft-tissue injuries and that these injuries will heal over time. Her own insurer, Intact, categorized her injuries as “predominantly minor”. Her treating physiotherapist discharged her from the treatment program and her family physician assured her on several occasions that her pain would go away. Even after the right shoulder sonogram, the doctor told TM that her injury will resolve over time. She trusted the opinions of her treating practitioners and believed that she will recover.
It is further submitted that TM would have been barred from bringing her claim forward prior to the summer of 2016. TM continued working in her cleaning job, while the claim would not have met the requirements of the threshold test for motor-vehicle claims in Ontario, i.e. a permanent serious impairment of physical function that interferes with employment in accordance with section 267.5(5) of the Insurance Act.
It is respectfully submitted that TM acted in a diligent manner and the limitation period should run from the summer/fall of 2016. TM stopped working completely on September 7, 2016, retained MG Law and the Statement of Claim was expeditiously issued on September 12, 2016. MG Law then obtained an opinion on June 16, 2017, from a doctor stating that TM’s injuries meet the threshold.
This was a big win for us, and we’re very proud that we stayed the course in order to keep producing results for our clients. Craig Brown of Thomson, Rogers was able to assist us in arguing the motion to its eventual success.