The Ontario Limitations Act, sets a two year time restriction that affects when an accident victim must commence a personal injury claim before it is statute-barred. Also, under the Insurance Act of Ontario, section 267.5(5), a person injured in a motor vehicle accident can seek compensation for their pain and suffering (i.e. non-pecuniary damages) only if they sustained a permanent and serious disfigurement, or a permanent and serious impairment of an important physical, mental or psychological function. Together, these two regulations are often brought to bear in determining whether a plaintiff whose injury did not heal as they anticipated or developed complications such as chronic pain syndrome, is nevertheless eligible to seek damages more than two years after the date of their accident.
The Limitations Act states that an injury claim cannot be commenced more than two years after a claim was discovered, which is often referred to as the ‘discoverability principal’ (or the date the plaintiff realized they had grounds for a claim). A claim is considered to be ‘discovered’, when the injured person first knew or ought to have known that: 1) they experienced an injury or loss; 2) the damage was caused by the action (or inaction) of the person against whom they are making a claim and; 3) a claim or civil action is the appropriate means to remedy the loss.
Thus, if someone is claiming damages for pain and suffering more than two years after they sustained an injury in an accident, the question to be answered is whether a reasonable person, with the same abilities and circumstances as the plaintiff, ought to have first realized that he or she had a claim for permanent and serious injury against the negligent party. For the purposes of understanding when a claim for non-pecuniary damages that is commenced more than two years after an accident, will be allowed or dismissed, let’s examine two recent trials which resulted in different outcomes.
In November 2007, a woman was involved in a car accident, when the car in which she was a passenger swerved around a pylon on Queen Street in Toronto and was hit by a TTC (Toronto Transit Commission) streetcar. The woman claims that both the TTC driver and driver of the vehicle in which she was a passenger did not drive with due care and were negligent. On September 27, 2010, she commenced a civil suit for damages against the defendants, claiming that she experiences pain and injuries constituting a serious and permanent impairment. The defendants filed a summary judgement motion to dismiss the plaintiff’s action charging that it violates the statutory time limit set out by the Limitations Act.
The key question to be resolved by the judge in Sorita v TTC, 2016, is when the injured woman discovered her cause of action. The court heard medical evidence which showed that the plaintiff consulted multiple medical practitioners, including her family physician, a neurologist and psychologist, between November 2007 and October 2008. Her symptoms include persistent and severe headaches, depression, nausea, sleep disorders, anxiety and back pain. The plaintiff received treatment during this time for headaches, post-traumatic stress disorder, depression and chronic pain. On April 18 and May 1, 2008, two separate doctors diagnosed her with depression and chronic pain (particularly associated with her severe and chronic headaches) that were believed to have been caused by her accident. On October 2008, another doctor diagnosed her with chronic pain based on a chiropractic assessment and sent a report to the plaintiff’s insurers to report his diagnosis.
The plaintiff submitted that her symptoms, in the early stages, did not enable her to realize she had a claim, and she did not know her injuries constituted a serious and permanent impairment until she received the doctor’s report on October 9, 2008. The defendant disagreed and argued that the plaintiff ought to have known of her claim much earlier (in March 2008), given that she underwent multiple medical assessments and received several diagnosis of chronic pain. The judge in this case sided with the defendants. There was substantial medical evidence indicating that her chronic pain satisfied the threshold in the Insurance Act. Therefore, the judge deemed that the limitation period began on May 9, 2008. Because her action commenced on September 27, 2010, more than two years from when she ought to have realized she had a claim, the plaintiff’s action was deemed statute-barred.
In McMillan v Adeite and State Farm Mutual Automobile Insurance Company, 2016, another claim was challenged in a summary judgement motion by the defendants for having been commenced more than two years from the accident. Like Sorita v TTC, this action resulted from a motor vehicle accident, in this case when the defendant rear-ended the plaintiff’s car in April 2011. X-rays taken at the hospital immediately afterwards revealed no fractures; however, a follow-up medical assessment indicated that the plaintiff likely suffered soft tissue injuries, which fell within the Minor Injury Guideline (MIG) to qualify for statutory accident benefits. Her family physician completed a Disability Certificate for the accident benefits claim, anticipating that the duration of her disability was from 9 to 12 weeks. She also continued to receive massage therapy and physiotherapy.
A few months later, due to numbness in her fingertips, the injured woman was referred to a physiatrist (physical medicine and rehabilitation physician). She also consulted a chiropractor who diagnosed left CG cervical radiculopathy, lumber spine dysfunction and lower back pain, and noted that she was at the time unable to function in various activities, including housekeeping, and attend school and work placement. After experiencing her worst two months in terms of pain, the plaintiff had a second appointment with the physiatrist, who ordered an MRI of her cervical spine; but he did not suggest a follow-up appointment or indicate that she had a serious injury. She underwent the MRI on September 17, 2011 but was never contacted with the results, either by the physiatrist or her family doctor.
The plaintiff’s symptoms improved and she resumed many activities, including going to the gym, driving and working full-time as a teacher. She enjoyed running as a leisure past-time and ran a marathon in 2012. From 2011 to 2013, the plaintiff had numerous appointments with her family doctor, as well as massage therapy and chiropractic treatment. She continued to improve but still experienced some symptoms from the accident, including neck and back pain, headaches, pain in her ribs, symptoms in her left hand and forearm, and anxiety when driving. When she visited her family doctor in early 2013, concerned that she wasn’t improving, he again referred her to the physiatrist. On June 26, 2013, based on the MRI results, the physiatrist communicated several concerns to the plaintiff: she had two herniated discs in her neck; running is ill-advised as it could cause significant spinal injury; surgery may be considered in the future if her condition worsens; and also, he was of the opinion that her condition is serious and she should consult a lawyer. On September 30, 2013, the plaintiff issued a Statement of Claim.
The key issue to be decided by the court was whether the plaintiff met the onus of showing that she exercised reasonable diligence in investigating whether her injuries from the accident may have been permanent and serious. The defendants argued that the plaintiff should have followed up on her MRI result, but the plaintiff disagreed, postulating that it was reasonable to assume there were no problems with her MRI when she didn’t hear back from her doctors. The judge in this case agreed with the plaintiff and concluded that it is reasonable for patients to defer to their medical doctor and further, it was a reasonable assumption that her family doctor or the specialist would contact her if there was a problem with her MRI. On a finding that the plaintiff practiced reasonable diligence to determine whether she had grounds for a claim, the judge dismissed the defendant’s motion for summary judgement.
If you were injured in any type of accident caused by negligence, contact Kotak Law as soon as possible. We will ensure that you don’t miss any legal requirements for filing a claim and can offer expert advice on the medical assessments and ideal timeline for understanding the full extent of your losses.