Know the deadlines when pursuing a personal injury case

By Paul Russell, LegalMatters Staff • People who suffer an injury need time to recover. But they must also be aware there are deadlines governing their right to make a claim for compensation, warns Ontario personal injury lawyer Joshua Goldberg.

“You have a limited amount of time to take legal action after an accident in Ontario,” says Goldberg, principal of Joshua Goldberg Law. “If you miss those deadlines, there is a good chance an insurance company will deny your claim, depriving you of funds that may be essential to aid in your recovery.”

When it comes to personal injury claims in Ontario, there are several different time limits that apply, he says, noting they are largely dependent on the type of claim, the age of the claimant and who they are suing.

“Generally speaking, a personal injury lawsuit must be filed two years from the date of an accident, Goldberg says. “This deadline is known as the statute of limitations. If you miss that deadline, you could miss out on your opportunity to obtain the money you deserve.”

Exceptions to the two-year rule

He tells LegalMattersCanada.ca there are some exceptions to the two-year limitation period.

“You may not realize the extent of your injuries until six months or a year after an accident,” Goldberg says. “In that case, the two-year clock may start when you realize your injuries are serious enough to pursue a claim.

He notes that insurance companies will attempt to dismiss claims that are made more than two years after an accident claim, arguing the claim is statute-barred by the Ontario Limitations Act. 

“In those cases, your lawyer needs to show that you did not discover the extent of your injuries until a period of time has passed after the accident,” Goldberg says. “Proving you didn’t realize the extent of your injuries until later can be difficult,” Goldberg says. “You should keep any medical records and or other corroborating material.”

Soft-tissue injuries slow to emerge

He notes that it might take weeks or even months to notice symptoms of soft-tissue injuries.

“Whiplash is a common type of injury that might not manifest itself immediately,” Goldberg says. “The swelling and reduced muscle mobility it causes can increase as time progresses. You may be fine in the days after the accident, but then stiffness and pain become evident.”

He adds that the two-year limitation period does not apply if the person injured is not represented by a litigation guardian and is:

• a minor (under 18) at the time of occurrence of the event; or
• physically, mentally, or psychologically unable to begin proceedings.

Goldberg says that people who are injured due to the negligence of others should immediately seek the advice of a personal injury lawyer.

“We can walk you through the limitation periods that apply in your case, ensuring you meet all the deadlines so your claim is not compromised,” he says.

Accidents on municipal property

If you suffer an injury on municipal property, such as falling on a poorly maintained sidewalk, you must notify the clerk for the municipality in writing within 10 days of their accident, says Goldberg. This notice must include the date, time and location of the accident, and must be sent by registered mail.

“If you don’t meet that deadline, a judge may dismiss your claim, unless there is a justifiable reason for the delay,” he says.

• Escalators make life easier but they can also be risky
• Tobogganing is thrilling but it can also be dangerous
• Social media posts can be used against you after an accident

Subsection 44 (1) of the Municipal Act dictates that municipalities are not liable for personal injuries caused by snow or ice except in cases of gross negligence.

“It is worth noting that no court has yet defined what constitutes ‘gross negligence,’” says Goldberg, adding that the standard is applied on a case-by-case basis.

Injuries on private property

Any property that the government does not own is considered private property, he says

“You may be eligible for compensation if have sustained injuries in a parking lot, golf course, home property or any other area that is privately owned,” Goldberg notes. “That is because the owners have a duty to maintain their property so that it does not present hazards to visitors.”

Under the Occupiers’ Liability Act, anyone injured in a slip-and-fall on private property has 60 days to provide written notice of the action to the property owner or independent contractor managing the property, he says. The notice must indicate the date, time, location, and nature of any injuries suffered, and must be served in person or by registered mail.

Injuries that lead to compensation

There are many factors that determine if you are entitled to compensation due to the action or negligence of others, Goldberg says, including:

• Sustaining a permanent or serious physical impairment in an auto accident that was not your fault.
• Falling because of ice, unsafe construction, property debris or poor property maintenance.
• An injury in the performance of your employment duties due to unsafe working conditions.

Under Ontario law, damages may be awarded to injured parties to compensate for:

• pain, suffering, emotional distress and loss of enjoyment of life;
•  lost wages or income;
• the expense of medications and necessary treatments;
• out-of-pocket costs and expenses; and
• legal costs incurred as you pursue a claim.

“The deadlines for filing for compensation can be confusing, which is why we urge people to talk to us about legal remedies and their timelines,” says Goldberg. “We want to get you the compensation you deserve to make yourself whole again.”