Toronto Injury Lawyer Blog
I speak with a lot of people everyday about their personal injury cases. Some people are clients. Some people are looking to become clients. We don’t take on each case that comes in our door. There are a variety of reasons for this.
What makes one case good, but another case bad?
There are a lot of answer to this question. But, a common thread often comes down to timing.
Personal injury lawyers are wonderful problem solvers. They have to use their smarts, creativity, and experience to find solutions to complex problems. Each case is a complex problem. If it weren’t a complex problem, money would rain down from the sky after each and every accident; and there would be no need for seeking a personal injury lawyer because every injured accident victim would automatically recover maximum compensation with little to no effort. But this isn’t how the real world works. Insurers like their money; and they aren’t in the business of paying out big bucks on claims for no reason at all. Even if there is a reason to pay out of the claim, insurers are tight with their pocket books. You don’t make money by paying out on each and every claim that crosses your desk.
The one thing that personal injury lawyers can’t fix is a missed limitation period. There is a statute of limitations on claims, and personal injury claims in particular. Each personal injury claim has its own unique limitation period, or notice period. By way of example, when suing a City or Municipality for a personal injury in a slip and fall case; a Plaintiff must given written notice within 10 days from the date of the accident. When suing a private property owner under the Occupier’s Liability Amendment Act, you must give 60 days written notice to the owner from the date of the accident. When suing the Crown in Ontario, you must give written notice to the Crown at least 60 days before commencing the lawsuit. After a car accident, a Plaintiff has 30 days to file their Application for Accident Benefits (OCF-1). Failure to do so might jeopardize their entitlement to accident benefits, and thus hurt their personal injury case against the at fault driver. All of these personal injury cases need to be filed within 2 years from the date of the accident, save and except for the claims of the minors which are subject to their own limitation periods once they reach the age of majority.
Your personal injury lawyer cannot go back in time and undo a missed notice period, or a missed limitation period. Your personal injury lawyer can seek to pass the blame of a missed limitation period on another party, but that sort of claim is not always successful, particularly if a previous personal injury lawyer or paralegal was not retained beforehand.
So, what will almost automatically separate a successful personal injury case, for a personal injury case which isn’t likely to succeed, is determining whether or not the limitation period has expired, or if there is more time to get the claim issued with the Court.
When calls come into our law firm and we hear that the accident (trip and fall, car accident, dog attack, motorcycle accident) took place years ago (I’m talking like 20+ years), and that a claim was never issued and the person was an adult when the accident happened, there isn’t much which we can do. Even if the claim sounds like it has merit when it comes to liability, causation and damages. The excuses for not filing a claim are extensive. But the law is quite harsh when it comes to limitation periods for personal injury cases OTHER than sexual assaults or accidents involving minors. If it’s a sexual assault or sexual abuse claim; or if it’s a personal injury case involving a minor, then the Court will have all day to hear the reasons as per why the claim was not filed in time. But, the case isn’t a sexual assault case, or the case does not involve a minor, (or a party under legal disability), the law won’t be on your side and you might find that the Court is short of patience for such claims.
What happens when your personal injury case is filed out of time?
You can file the claim with the Court no problem. You can also serve the claim on the Defendant. But, once the Defendant is served with the claim; his/her lawyer would likely bring a summary Judgment Motion before a Judge to have the claim dismissed on account of failing to issue the claim within the limitation period. It would then be up to a Judge to decide whether or not the claim should advance, or whether or not it should be dismissed. You can make your case before the Judge as to why the claim should continue despite the fact that you missed a limitation period. The Judge may accept your argument, or might not. There needs to be some legal rationale as to why the limitation period was missed. Stating that you simply didn’t know about the limitation period isn’t sufficient. Ignorance of the law is no excuse for failed compliance. This is not how our justice system works. If that were the case, everyone would argue that they weren’t aware of the law (criminal, family, civil, estates etc.). It would encourage people to be wilfully blind to disobey the laws in place. Imagine running a red light, or driving through a stop sign and your excuse for doing so was that you didn’t know that you were required to stop. The Judge then goes on to accept your defence that you didn’t know how the street signs were supposed to work and you get off on the charges. That would lead to a chaotic society.
If your case is dismissed for failing to miss a limitation period, the Judge can also order that the Plaintiff pay for the Defendant’s legal costs. This is not something which a Plaintiff thought about when commencing his/her case; but it’s something that they should be made aware of. Litigation always carries risk, even if you’re the party bringing forth the action.
