Law Times

Page 8 January 16, 2017 • Law Times www.lawtimesnews.com Accident victims may have more time for legal actions Latitude exists on two-year limitation period BY MARG. BRUINEMAN For Law Times A recent decision serves as a reminder that judges have some lati- tude in the two-year limitation period in motor ve- hicle accidents where there is serious and permanent injury. But even in circumstances when discoverability of the ex- tent of the injury is delayed, law- yers may open themselves up to liability. In Schaefer v Ayeneababa, the defendant sought a judg- ment to dismiss because the plaintiff, who had been rear- ended while driving on High- way 427, started legal action more than two years after the accident. But Justice Edward Belobaba disagreed that the action was time barred and found some latitude is necessary in deter- mining when the period should start in situations where there is serious and permanent injury. "There is no suggestion that the plaintiff knew or could have known within the six-month time frame leading up to De- cember 2, 2009 (the date that is two years before the action was commenced) that her soft-tissue injuries would be permanent," wrote Belobaba. Therefore, the plaintiff made the discovery that the impair- ments were permanent within the two-year limitation period, he concluded. Stephen Birman, a personal injury lawyer and partner with Thomson Rogers in Toronto, says any time a lawyer launches a suit more than two years after the accident there is a chance it could be challenged by the de- fence. But he says the discover- ability principal, where there is proof that the plaintiff only later learns the true seriousness of the injuries, pushes the constraints of the limitation. The clock on the two-year limitation period is meant to start ticking down at the point when the plaintiff knows or ought to have known they are going to seek a remedy, says Bir- man. And he says if that takes them beyond the sphere of the two years, the burden is placed upon them to provide evidence showing they didn't know it was reasonable to proceed earlier. "There are some cases where you may not know on the date of the event that it makes sense to sue. In those cases, you can wait a certain length of time. "But any time you wait be- yond two years from the date of the event, it's controversial be- cause the legislation states that presumptively the limitation period is going to be two years from the date of the event," he says. "The question becomes when does someone know they have permanent and serious in- jury." The catch is the threshold that requires there to be a se- rious and permanent injury, which can delay the two-year limitation countdown. Litigation lawyer Martin Za- tovkanuk of Schwarz Law LLP in Toronto says that position is being solidified with a growing body of cases. He also had success in argu- ing a similar issue with Pereira v. Contardo, in which the de- fence was denied leave to appeal. In his case, Justice Paul Perell pointed out that the statement of defence argued two contrast- ing points — that the plaintiff ought to have known earlier there was a permanent and seri- ous impairment and that there was no permanent impairment. "That's a standard thing that's put in the statement of de- fence," Zatovkanuk says. By including that the plain- tiff doesn't meet the necessary threshold leaves them open to explore that argument later on, he says. But Justice Perell read it as the defence looking to have it both ways. But, as in Schaefer, the plaintiff in Pereira assumed he would fully recover from his in- juries only to later discover they were permanent. "They're extremely similar in that we had a report done for her, I believe it was within two years after her accident, but the claim itself wasn't until after the two years after her accident. "Again, it was the same question, whether the plaintiff would have known she had the threshold injury at the two-year mark," he says. "I think, for the time being, the defence side is going to lose virtually all of these cases unless they can show that the plain- tiff actually had a report from a doctor that gives the opinion that there is a permanent and serious impairment and two years after that they did not file a claim." James Prior, a partner at Miller Thomson LLP in Wa- terloo, Ont. who works in the insurance defence group, says discoverability plays a big role in the application of the limita- tion period. So the clock doesn't start running until there is a suffi- cient body of evidence to estab- lish that they have a threshold injury. But there are risks in trying to delay the start of that clock. "You don't want to necessar- ily rely on the discoverability principal extending the limita- tion period. It is a fact analysis and there's no guarantee," says Prior. "The discoverability principal is re- lied upon as a means of last re- sort," he says, when a limitation period is missed. It is a bit of a juggling act, adds Birman. He says if you sue too early, you may not have the necessary evidence to establish the per- manent and serious threshold FOCUS ON Insurance Law Martin Zatovkanuk says a growing body of cases shows a delay on the two- year limitation can happen where there is a serious and permanent injury in a motor vehicle accident. See Waiting, page 12 WHEN YOU HIRE ONE OF US, YOU HIRE ALL OF US TORONTO | WHITBY | OT TAWA | FML AW.CA HONOURED TO BE ONE OF CANADA'S TOP 10 INSURANCE DEFENCE LITIGATION BOUTIQUE FIRMS As Voted By Canadian L awyer Magazine Forward Thinking Strategic Litigators CHOSEN AGAIN Untitled-5 1 2017-01-10 1:56 PM FOCUS

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