Generally speaking, if you have been involved in a motor vehicle accident and someone else was at fault, you have two years to sue the at-fault driver. In other words, the court process must be commenced within two years after you knew about your case. If not, the case will be thrown out because it is statute barred.
In Ontario, the Insurance Act only allows people to make claims for certain damages if they have injuries that are both serious and permanent. Because of this limitation, a question that frequently arises is: “When does the two years start?” Is it from the date of the accident or from the date when the accident victim knew that his or her injuries were both permanent and serious?
Recent court decisions have held that the two year limitation period only starts when the accident victim knew that he or she had serious and permanent injuries. For example, in the decision McMillan v. Adeite and State Farm Mutual Automobile Insurance Company, the plaintiff Brittany McMillan was injured in a car accident on April 14, 2011. She did not commence her court case until September 30, 2013, more than two years later. The insurance company brought a motion to the court seeking to have the case dismissed for missing the limitation period.
The judge did not dismiss Ms. McMillan’s case. Ms. McMillan had pain in 2011 after the accident but was told that with treatment her injuries would heal and she would recover. In other words, her injuries were not permanent. She was referred to a specialist and an MRI of her spine was performed in 2011. Ms. McMillan did not hear back from the specialist and assumed the MRI showed no injuries. It was not until June of 2013, when she continued to have pain, that she was referred back to the specialist. She was at this time informed that the 2011 MRI showed two herniated discs in her back and that she may require surgery in the future.
The judge concluded that Ms. McMillan had exercised reasonable diligence in investigating the possibility that her injuries from the accident were permanent and serious. As such, he found that Ms. McMillan ought first to have known that her injuries were permanent and serious in June of 2013, when she was informed of the MRI results. Therefore, the two year limitation period did not start on the date of the accident, but only when Ms. McMillan knew she had a case.
After you have been involved in an automobile accident it is important to hire a lawyer right away, to ensure the limitation period and other notice periods are not missed. If two years has passed and you have still not seen a lawyer, as Ms. McMillan’s case shows us, it still may not be too late to start your claim.
If you have been seriously injured in a car or other motor vehicle accident in Ottawa or anywhere else in Eastern Ontario, contact personal injury lawyer Sean Giovannetti for a free consultation: