Case Evaluation

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The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. generally provides a two year period to bring an action.

However, in practice, that period can be somewhat elastic and subject to what the courts term the ‘discoverability principal.’ This was illustrated in the recent Naipaul v State Farm Mutual Insurance Company, 2015 ONSC 2186 (CanLII) case.

In the mentioned case, a husband and wife were injured in a car accident with an uninsured driver. While the couples’ lawyer promptly informed their insurer, State Farm, that a claim would be forthcoming, no claim was in fact brought against State Farm for two years and four months. When the claim was then made, State Farm moved for summary judgment dismissing the action, alleging that the injured parties knew of their claim by no later than the date the notice letter was sent.

However, that argument was rejected by the Court, which held that at the time the notice letter was written, there was insufficient evidence that the injuries sustained could meet the threshold required by s. 267.5(5) of the Insurance Act, and hence, that their claim hadn’t in fact been ‘discovered.’

Similar findings have been reached in cases of professional negligence against lawyers as well, such as in the Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 (CanlII) and Lauesen v. Silverman, 2016 ONCA 327 cases.

So, while it’s generally best to bring a claim within a 2 year period (unless the applicable Statute of Limitations provides for a shorter time), in certain cases, it is possible that you may have more time.

If you have a question about whether your claim may still be brought forward in Ontario Courts, call Michael’s Firm at 1-647-495-8995 today or alternately, fill out the case evaluation form on the right.

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