Category: Limitation Period

The plaintiff alleged to have sustained injuries in a motor vehicle accident and commenced an action for damages against the driver of the other vehicle involved in the accident. The accident took place on January 25, 2017, and the statement of claim was issued on January 25, 2019. Several months later, in November 2019, the plaintiff sought to add Ford Credit Canada Company as a defendant to the action, as it was an owner of the defendant vehicle. Master Losefo held that the claim against Ford Credit was statute-barred by the Limitations Act, 2002 because the plaintiff reasonably ought to have discovered ownership earlier, and in fact, was advised of ownership in October 2018. Master Losefo dismissed the plaintiff’s motion to add Ford Credit as a defendant.

The plaintiff attended the defendant hospital for treatment of a wrist injury. Five days later she received a mailed copy of an x-ray report showing a wrist fracture, which was unsigned. Approximately three years later, she reached the age of majority. Nearly two years after that, she commenced an action for damages against the defendant hospital and the doctor who assessed her at the hospital. In their statement of defence, the defendants pleaded that the report was reviewed by an additional physician at the clinic who attempted to contact the plaintiff to advise her of the x-ray findings. More than three years later, the hospital advised the plaintiff of the identity of the doctor who reviewed the x-ray report. A year after receiving this information, the plaintiff moved to amend the statement of claim to add the reviewing doctor as a defendant. The existing defendants opposed the motion on the basis that the claim as against the proposed defendant was statute-barred by the Limitations Act. The motion judge held that it was not because the plaintiff did not have sufficient identifying information of the proposed defendant until one year before the amendment motion. The decision was reversed on appeal. The Court of Appeal reasoned that plaintiff failed to provide evidence that she would not have identified the reviewing doctor’s identity sooner had she exercised reasonable diligence on learning of the involvement of a second doctor.

The Court of Appeal held that business interruption claims are not subject to a rolling limitation period. The appellant insureds commenced two actions for insurance coverage under a CGL policy issued by the respondent insurer, which provided coverage for “direct loss from any Peril” including business interruption loss and loss of property due to theft or wrongful handling. The trial judge dismissed the first action on its merits. In the second action, the trial judge dismissed the property claim as time-barred, but allowed the business interruption claim to proceed in part, reasoning that business interruption claims were subject to a rolling limitation period which preserved some of them. The insureds appealed on other issues and the insurer cross-appealed on the rolling limitation issue. The Court of Appeal dismissed the appeals but allowed the cross appeal, holding that business interruption claims are not subject to a rolling limitation period. The question is not whether the plaintiff is continuing to suffer a loss or damage, but whether the defendant has engaged in further breaches of contract. The limitation period started on the day the insureds knew that they had suffered a loss or damage, despite the fact that the extent of damages may not have been known to them with precision.

The plaintiff was in a motor vehicle accident on August 17, 2019. She commenced an action for damages on November 24, 2014. The defendant argued that the claim was statute-barred due to the expiry of the applicable limitation period. The plaintiff argued that the claim was not discoverable until late 2012 because that was when she was first diagnosed with fibromyalgia. Justice Pollack accepted the plaintiff’s position and held that the limitation period started to run in December 2012 when the plaintiff received a medical opinion that noted the presence of chronic pain and a poor prognosis for full recovery to pre-accident function, as that was the first time that the plaintiff could have known that her injuries might surpass the threshold.

The plaintiff, a bicyclist, was struck by a vehicle in November 2011. The plaintiff commenced an action for damages in July 2015. The plaintiff sustained soft tissue injuries, which developed into chronic pain. He was unable to continue with heavy physical labour as of late 2014 (he attempted to work in labour intensive jobs until that point). The plaintiff presented credibly and was likeable. He engaged in retraining in order to seek a low-impact job. Following a two week trial, Justice Hurley awarded the plaintiff general damages in the sum of $80,000 (gross), damages for past loss of income in the sum of $47,040, and damages for housekeeping expenses in the sum of $45,615.56. The housekeeping award was based on expert evidence regarding the cost of future outdoor housekeeping. Justice Hurley held that the action was not statute-barred because the plaintiff would not reasonably have become aware that his injury was serious and potentially permanent until the fall of 2014 when he had to stop all heavy construction work.