CROSSING THE THRESHOLD: WHEN DOES THE LIMITATION PERIOD CLOCK START TO TICK?

Author(s): Stephen M. Birman,

June 1, 2015

Generally, civil litigants have 2 years from the date that their claim is “discovered” to commence a civil proceeding. Typically, the discovery date will coincide with the date the act or omission, on which the claim is based, occurred.

The Ontario Limitations Act states that a claim is presumed to have been discovered on the day the act or omission, on which the claim is based, took place, unless the contrary is proven.

In third party claims arising from motor vehicle accidents, the question of when the limitation period begins to run is complicated by the so-called “Threshold”, which is set out under s.267.5(5) of the Insurance Act.

The Threshold requires that an injured person sustain either:
a) Permanent serious disfigurement; or,
b) Permanent serious impairment of an important physical, mental or psychological function,
to advance claims against an at-fault driver for pain and suffering damages and/or medical expenses arising from an accident. The Threshold applies only to motor vehicle accident claims and serves to restrict a litigant’s ability to commence litigation. However, the Threshold requirement to commence motor vehicle accident litigation may also have the unintended consequence of extending discoverability dates for accident victims who, in many cases, will not know whether their claim surpasses the Threshold (which requires permanent injury), for months or years following an accident.

 
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