Statute of Limitations
The Statute of Limitations (or in many Canadian provinces the Limitations of Actions Act) determines the date by which you must sue for an incident or you lose your right to sue for that incident. This date is referred to as the limitation date. Do not confuse this with a notice period that may be required by a car insurer or a government body under legislation specific to those entities.
The rationale for having limitation periods is clear. In the event that someone has a claim against you, he or she should have to file a lawsuit within a reasonable period of time. You should not have to spend the rest of your life wondering if someone is going to sue you. Also, as time passes it becomes increasingly difficult to get all of the facts before the court. Memories can fade, documents can get lost, and witnesses may even die.
The law of limitations tries to balance the interests of those who may have claims, with the interests of alleged wrong-doers. If limitation periods are too short, the result may be harsh on people with legitimate claims. If limitation periods are too long, the alleged wrong-doer becomes unable to properly defend allegations against him or her.
The limitation date following a car accident can be confusing. In states and provinces where there is a ‘no fault’ insurance regime in place, there are short statutory ‘notice periods’ to give notice of the car accident to the accident benefits insurer (your own insurance company). Notice periods are not limitation dates but are dates by which certain things must be disclosed to the insurance company about your case or potential case. For the tort action (the action against the other driver), the limitation period in Ontario, for example, is two years from the date of the accident. If you do not sue the other driver within that time you will likely lose your right to sue (with some exceptions as later described in this article). Other provinces and states where there is ‘no fault’ insurance have similar notice periods for your ‘no-fault’ claim against your own insurance company. Other provinces and states may have limitation dates for the tort action against the other driver that may be shorter or longer than in Ontario. Check with a lawyer or attorney soon after your car accident to know what limitation periods and notice periods apply to you.
Discoverability Rule
In many Canadian provinces and American states, the limitation periods are often subject to a “Discoverability Rule.” The discoverability rule is premised on the fact that some people do not, or did not at the time, have the capacity or ability to sue by the legislated limitation date. The limitation period will start to run from the time the injured person knew or ought to have known of the negligent wrong-doing. This makes it difficult for people to really know if they have lost their right to sue or not
The reason it’s tough to state exactly what a limitation period is in any particular case is the courts in many jurisdictions have decided that although the legislation says the limitation period is 2 years as in Ontario for example, that period of time is extended if the injured person is unconscious, a child, on mind altering pain killers, under some other mental disability, or could not have known about the damage caused until long after the incident. Even with car accidents, that 2 year (Ontario) limitation can be extended by the court if an injured person suffers some circumstance that makes it unlikely he would have had the capacity to sue within the two year period. This often happens in car accident cases where a person is taking strong pain-killers such as morphine following the accident and therefore is not in any state of mind to set his or her mind to legal matters. In such a case, the limitation period would start to run once the person is reasonably free of the effects of the pain-killers that cause mental incapacity.
In many jurisdictions, the limitation period for a child does not start to get counted at all until the child turns eighteen. Therefore, a child injured in a car accident or negligent medical procedure when he is twelve is still able to sue the wrong-doer up until his or her 20th birthday. To know if this rule applies in your case or your child’s case, you should contact a lawyer or attorney with experience with your type of case.
The discoverability rules may apply in your jurisdiction. It is important to note that where a legal issue hasn’t been discovered for many years an “ultimate” limitation period may apply. If you think there may be a limitation period issue in your circumstance, you should seek immediate legal advice because all hope may not be lost if you get on it right away.
Other Important Information
Family law and estates limitation periods are usually very different from limitation periods for any other type of matter and usually governed by the family law legislation and estates legislation within any given jurisdiction. If you believe you may be entitled to child support, spousal support, or a division of family property or assets then you should immediately seek legal counsel. Family law limitation periods can be shorter than you may expect. If you believe you may be entitled to a share of an estate or wish to base your claim for compensation in any other matter on the death or injury of another person then you should seek legal counsel immediately. Time is of the essence in claims which are based on the death or the loss of care, guidance, or companionship of another person
If you have suffered injury on public property, notice periods can be very short. In many jurisdictions, your intention to sue a government body must be produced to that government body often mere days after you have suffered injury. If you have suffered injury on government property contact a lawyer or attorney without delay.
In construction lien matters there are very short limitations of 45 days both to preserve and perfect the lien.
In many jurisdictions, actions based on sexual assault do not carry a limitation period except for the ultimate limitation period (ie. in Ontario the ultimate limitation is the fifteen year anniversary of the day on which the act or omission on which the claim is based took place). In some states and provinces, actions against doctors carry a shorter limitation period than the general limitation period for personal injury.
Some provinces and states have ultimate limitation periods after which time you are absolutely banned from suing. For example, in Ontario the ultimate limitation is the fifteen year anniversary of the day on which the act or omission on which the claim is based took place.
In some circumstances there are no limitation periods in Ontario. Examples of such cases include undiscovered environmental claims.
Summary
In summary, governments of most states and provinces have tried to pass laws to make limitation periods clear. However, there are a multitude of exceptions to every limitations rule. It is advisable to get legal advice as soon as possible following any kind of incident that you think will potentially warrant legal action.
Be aware that limitation periods can vary depending on the type of case you are dealing with. In addition, the discoverability rules may alter these limitation periods to the benefit of the injured party.