When you are injured in Canada, you may wonder how long you have to bring a lawsuit against the individual, group, or company that caused your injuries. One of the most important rules in Canadian personal injury law is the statute of limitations.
This is the legal deadline for starting a lawsuit. While the decision to file a personal injury lawsuit doesn’t need to be made immediately, it’s essential to understand time restrictions that may apply to your claim and when the clock starts ticking.
Is There a Time Limitation Period in Canada?
The statute of limitations or “limitation period” is the amount of time a person can wait to file a lawsuit after an incident. The limitation period starts when the injury actually happened (date of harm), or when a person should have reasonably discovered the injury (date of discovery). You discover a claim on the day that you know, or ought to have known, the following:
- The injury, loss, or damage occurred
- The injury, loss, or damage was caused by an act
- The act was caused by a negligent party
For example, if you break your arm in a slip and fall accident, the clock will start at the time of the accident because the injury is immediately discovered. In some cases, an injury may not manifest immediately after the accident. This commonly happens in medical malpractice cases when the patient is unconcious or doesn’t discover their injury until a later date. In this situation, the claim could be discovered by a reasonable person on the day the incident took place, or when the link between medical care, procedure, or treatment and the injury is known or ought to have been known.
The injured person doesn’t need to know the precise cause of injury before or the full extent of the loss suffered before the limitation period starts to run. Instead, they only need to know enough facts to make a claim against the person responsible for causing the injuries. The time at which at which a reasonable person has sufficient knowledge to start running the clock depends on the circumstances of each case. For this reason, it’s best to contact a personal injury lawyer (also called an accident lawyer) as soon as you suspect you may have a claim.
What is the Basic Limitation Period?
The Limitations Act sets out the basic limitation period for starting a lawsuit in Canada that varies based on province and who the claim is brought against (known as the Defendant). The basic limitation period in Nova Scotia is 2 years from the date of the incident that caused the injury. If you do not file within the time limit, then you may not be able to sue for your injuries. However, there are some exceptions to the basic limitation period.
If the incident happened while the person was under the age of majority in Nova Scotia, the limitation period is 2 years from the date the person turns 19 (18 in some other provinces). For example, if a minor is injured in a car accident, he or she has 2 years from the date that he or she turns 19 to bring a lawsuit against the other driver.
Limitation periods will not apply or will be suspended if the injured person (known as the Plaintiff) isn’t capable of bringing a claim because of a physical, mental or psychological condition. Instead, the time limit will start when a person (Plaintiff or Litigation Guardian) knew there was a potential claim for the injury. The Litigation Guardian is someone who is appointed to make legal decisions on behalf of the Plaintiff, often a parent, spouse, or family member of the Plaintiff.
For claims against the Nova Scotia provincial government, the law requires a notice of 60 days from the day of the injury or accident before filing a claim. If the claim is brought against the municipality, the notice period is reduced to 30 days before filing a claim.
There is no time limit for filing sexual assault claims in Nova Scotia. The law recognizes that survivors of sexual assault need time to process the abuse and cannot be reasonably expected to pursue legal action right away.
Can I Extend the Limitation Period?
The Limitations Act was designed to simplify the process of figuring out whether the time limit to start a lawsuit has expired. If you missed the deadline to file a personal injury claim, it may be possible to request permission from the court to extend the basic limitation period.
The discoverability rule is a legal principle that allows a person to file a personal injury claim after the limitation period has expired in certain situations. This rule applies when the person who was harmed lacks the time, capacity, or ability to understand a potential claim exists. This can happen if the injured is unconscious, on mind-altering pain killers, or suffering from a mental disability that prevents them from suing by the limitation dates set by legislation.
Notice of Action
If you were injured in Canada and the statute of limitations has already passed, you might be able to extend the limitation period by filing a Notice of Action. A notice of action is the first step in starting a lawsuit in Canada and notifies the other party (the Defendant) that you plan to pursue legal action. This legal document is filed with the court and contains details of the incident that injured you, the party who caused the incident, and your claim.
The Defendant will then have a period of time to file a Statement of Defence. This statement explains why the person should not be held liable for your injuries. If the Defendant does not file a statement of defence, you can take steps to place them in “default judgement”. To get a court order for damages (compensation for your injuries) in a default judgement, you will need to request a damages assessment hearing. This will begin enforcement proceedings to collect on the order for damages.
Ultimate Limitation Period
The Limitations Act also sets a maximum amount of time that a person can wait to file a claim after an accident. This is called the “ultimate limitation period”. In Nova Scotia, the ultimate limitation period is 15 years from when the incident occurred.
Will My Personal Injury Claim Go to Court?
There are several stages in an injury claim before the parties argue a case in front of a judge. Most injury claims are resolved without bringing the personal injury case to trial. A resolution is often reached through out-of-court negotiations.
Generally, a notice of action is followed by the exchange of relevant documents and Discovery Examinations. These examinations often take place in boardrooms rather than courts. Following the discovery process, the parties often enter or re-enter negotiations on a settlement.
A settlement is an agreement between a Plaintiff and Defendant that resolves all issues in the lawsuit without going to court. The terms of the settlement can include an amount that is paid to the Plaintiff as compensation for their injuries and any other conditions that the Plaintiff wants the Defendant to follow in order to resolve the case.
Even if disputes on the claim continue after discovery examinations and the lawsuit proceeds further into the court process, both parties will often continue to negotiate a settlement. Negotiations can go right up until the weeks and even days before a trial.
Why Hire an Accident Lawyer Early?
If you are injured in an accident, your first instinct may be to deal with the situation on your own. However, handling serious injuries on your own can be complicated and stressful. You may have to deal with insurance companies and adjusters who try to lowball your settlement offer, or an insurance company that denies liability entirely and will not pay for your damages.
If you wait until the last minute to find a lawyer, they may not have enough time to research the details of your case before the limitation period ends. This means your case may not be eligible to go to court.
If the case is not eligible to go to court, you will not be able to present your side of the story to a judge, and the other party may be able to deny your claim without penalty. This can result in you losing all of your legal rights, including your right to file a lawsuit in the future.
Hiring an accident lawyer early in your case allows enough time to find out all of the information about your accident and gather evidence that will prove your injuries were caused by the other party’s negligence. To have a team of experienced accident lawyers in Halifax look over your case, book a free consultation with Valent Legal today.