Injury Claims By Children – Know The Special Rules For Statute of Limitations
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The Ontario Limitations Act should be of a concern for anyone injury through the negligence of another party. Under normal circumstances, you only have two years from the date of the accident causing you to be injured to sue for compensation. Two years might appear to be a lot of time, but it can go by quickly. Waiting too long could ruin your chance to recover damages, but there are special rules in place to protect the rights of children and certain other categories of accident victims if a lawsuit is not filed within the two-year limitation period.
The purpose of limiting the time to sue
The law recognizes that claims for personal injuries, such as those suffered in a car accident, from a fall on a broken sidewalk or through the negligence of a surgeon performing an operation, could be difficult to defend against years after the event. Evidence could be lost or destroyed and witnesses might move away or forget important details about what they saw. For these reasons, the Ontario Limitations Act requires that you sue within two years from discovery of the claim.
It is important to note that the distinction between the date of discovery and the date of the accident or injury. Chances are that if you are injured in a car accident or due to a fall, the date of discovery will undoubtedly be the accident date.
Some types of claims, particularly those arising from a doctor’s negligence providing treatment to a patient, might not be as readily discoverable. For example, it could take months or years before symptoms develop from a surgical sponge left in a patient during an operation. The statute of limitations begins to run from the date on which a reasonable person faced with similar circumstances could be expected to discover the existence of a claim for damages.
Children and other exceptions to the statute of limitations
When a person injured through the fault of another party is younger than 18 years of age, the Limitations Act does not permit the limitation period to begin to run until a litigation guardian has been appointed for the child. Once a litigation guardian is appointed by a court, the limitation period begins to run.
The application to a court asking for appointment of a litigation guardian may be made by someone acting on behalf of the child. The law also permits a motion for appointment of a litigation guardian to be made by the defendant, the party against whom the child has a potential claim. The reason a potential defendant has the right to make the motion is to allow that party the opportunity to take action to prevent unnecessary delays.
Postponing the running of the limitation period also applies in situations in which the physical, mental or psychological condition prevents party with the right to make a claim for damages for personal injuries from doing so. As in the case of a minor with a claim for damages, the limitation period is suspended until a litigation guardian is appointed for the individual.
Ontario personal injury lawyers
The rules pertaining to limitation periods for suing for compensation for injuries caused through the negligence of another party are complex, so you should speak with a personal injury lawyer as soon after your injury as possible. The personal injury lawyers at Diamond and Diamond have years of experience successfully handling claims for compensation on behalf of accident victims throughout Ontario. Call the Diamond and Diamond 24/7 injury hotline at 1-800-567-HURT or visit our website to speak to someone now. We have offices located throughout Ontario offering free consultations and case evaluations to injury victims and their families.
Faqs
How does the date of discovery differ from the date of accident?
The date of discovery refers to the specific period when a person realizes the existence of adverse physical effects of past incidents or accidents. A suitable example would be someone realizing that his/her back condition is a direct consequence of years in heavy manual work. That particular day when a connection to an existing physical condition is made becomes the date of discovery.
On the other hand, the date of the accident is the precise date at which a person’s involvement in a singular incident or accident resulted in mild to severe physical injury. A suitable example is someone who experiences a herniated disk while lifting a product-laden crate at work. The particular day when the herniated disk injury occurred becomes the date of the accident.
What are the exceptions to the two-year statute of limitations for Ontario personal injury claims?
There are two main exemptions to the two-year statute of limitations on the filing of personal injury claims in Ontario. The first exemption revolves around the date of the discovery rule. This rule allows a person to file a personal injury claim for an act of negligence that occurred more than two years prior, as long as the date of discovery falls within the statutory two-year limit.
The second exemption revolves around realizing the litigation option in the pursuit of compensation for a personal injury. The provision allows an individual to file a personal injury lawsuit past the statutory two-year limit if he/she can prove to be unaware that litigation offered a venue to seek compensation for injuries caused by a negligent act.
Who can be eligible to be appointed as the litigation guardian?
A litigation guardian has the role of a substitute decision-maker in legal proceedings involving a legally disabled plaintiff. A legally disabled individual in this context refers to someone with a reduced ability to grasp the legal specifics of the case, e.g., a child, a person with low cognitive capability, and so forth.
Anyone who files a written consent from the legally disable plaintiff is eligible for a litigation guardian’s role. A judge can also appoint any person he/she deems as qualified to take up a litigation guardian’s role.