Sustaining a serious injury can have an immediately devastating impact on someone’s life. If you have suffered a personal injury due to someone else’s negligent actions, you may be able to commence a claim for compensation against the person that caused the injury.
When pursuing a personal injury claim, it is important to remember that an action must be commenced within the statutory limitation period. If you wait too long after the accident or date on which the injury occurred, your claim may be statute barred. It is crucial to seek the advice of an experienced litigator as soon as possible to make sure that you do not miss any deadlines.
This article explains which statutory limitation period applies in Ontario and highlights some exceptions to the general rule. This article will also review a recent decision from the Court of Appeal for Ontario in which the plaintiff commenced an action against an ex-partner many years after the alleged events, which included assault. The defendant sought to have the claim dismissed as it was beyond the limitation period.
What is the statutory limitation period?
Ontario’s Limitations Act (the “Act”) sets out the rules governing the timeframe in which an individual must start an action. Section 4 states that the basic limitation period requires proceedings to be commenced no later than two years after the day on which the claim was “discovered”.
It is generally a best practice to start your action before the end of the limitation period. However, in some circumstances, you may have longer to file your claim due to the definition of “discovered”.
What is the test for determining the day that the period starts to run?
Section 5 of the Act contains a test for determining when the claim was discovered. The limitation period begins on the date on which the injury was discovered. In most circumstances, a claim is discovered on the day that the person first knew of the following four elements:
- that the injury, loss or damage had occurred;
- that it was caused/contributed to by an act or omission;
- that the act or omission was that of the defendant; and
- that a proceeding would be an appropriate means to seek to remedy it.
If a reasonable person with the abilities and in the circumstances of the injured person ought to have known of these four things by an earlier date, that is the day that the claim is discovered. There is also a presumption that the person knows of all four things on the day the act or omission took place, unless they can prove otherwise.
It is also important to note that section 15 contains an ultimate limitation period, which requires all actions to be commenced before the 15th anniversary of the day the act or omission on which the claim is based took place (subject to exceptions). The ultimate limitation period applies even if the claim has not been “discovered” by the 15th anniversary.
Are there any exceptions to the two-year limitation period?
The Act contains limited exceptions to the general two-year limitation period, including:
- The limitation period does not run while the person with the claim is a minor or incapable of commencing a proceeding, provided a litigation guardian does not represent them.
- There is no limitation period in respect of certain proceedings, including those based on a sexual assault, based on other sexual misconduct if the person with the claim was a minor or was dependent on the person committing the misconduct, or based on an assault if the person with the claim was a minor or had an intimate relationship or dependence on the person who committed the assault.
Plaintiff commenced action many years after the events
In Deluca v Bucciarelli, the parties had been in a romantic relationship that ended in 2010. In 2019, the plaintiff started proceedings claiming damages for multiple causes of action, including assault, concerning the defendant’s conduct between 2010 and 2012.
The plaintiff alleged that the defendant harassed and threatened her, causing her to fear for her safety. The conduct included making false reports to the Workplace Safety and Insurance Board and police and sending threatening messages.
The defendant asked the Court to dismiss the action because it was brought outside of the general limitation period. While the conduct occurred more than two years before the plaintiff commenced the proceedings, she argued that it fell within an exception because the proceeding was based on an assault that occurred in an intimate relationship.
The motion judge was not satisfied that the plaintiff provided sufficient evidence of the defendant’s conduct to meet the definition of assault and dismissed her claim. The plaintiff appealed.
The proceedings were not saved by the assault exception
The Court of Appeal disagreed with the plaintiff and dismissed her action.
The Act contains an exception for a proceeding based on an assault in certain circumstances, including where the parties were in an intimate relationship. However, the Court explained that, in order to prove the tort of assault, the plaintiff was required to show that she had reasonable grounds to believe she was in danger of violence and that she feared imminent harmful or offensive contact.
Crucially, threatening conduct does not constitute assault unless the event feared is imminent. Based on the plaintiff’s evidence, the Court determined that the alleged conduct did not rise to the level of an assault because there was no evidence that the plaintiff feared imminent contact. A police report stated that the plaintiff did not fear for safety. Given that the conduct did not meet the definition of assault, the exception to the limitation period was not available.
Contact the Lawyers at Campbell Litigation – Serving Waterloo, Kitchener and the Surrounding Areas
Do not miss your opportunity to seek compensation for your injuries. Contact the experienced personal injury lawyers at Campbell Litigation to discuss your potential personal injury claim. We help clients handle various personal injury cases, including assault. To arrange a free initial consultation with a trusted team member, call us at 519-886-1204 or contact us online.