Previously I have written about limitation periods and starting lawsuits against defendants within the basic presumptive two year limitation period. The recent case of St Marthe v O’Connor confirms the law regarding discoverability in motor vehicle accident cases.
In St Marthe, the plaintiff was 33 years old when he was riding his bicycle and struck by a motor vehicle on November 9, 2011. He suffered a soft tissue injury to his back that did not heal. About three years and eight months after the accident, on July 14, 2015, he started a lawsuit. The lawsuit was commenced beyond the two year limitation period prescribed in the Limitations Act, 2002. Nevertheless, after a trial at the end of 2018, the plaintiff was successful in recovering damages. How?
The plaintiff relied upon the discoverability principle codified in the Limitations Act, 2002. In a personal injury claim arising out of a motor vehicle accident, a plaintiff will not have discovered his claim until he knows that he has a substantial chance to succeed in recovering a judgment for damages. This involves both a consideration of the statutory deductible under the Insurance Act and whether the plaintiff is aware that he has suffered a permanent and serious injury.
In this case, Aviva, the insurer defending the claim, argued that the plaintiff should have known or, alternatively, with reasonable diligence would have discovered that he suffered a permanent, serious injury two years before he started his lawsuit. The court found there to be a “patent incongruity” in the defendant’s legal position because the defence also argued that the plaintiff did not sustain a permanent, serious injury. As a result, the court concluded that the plaintiff’s claim was not statute barred because he did not have the requisite knowledge that his injury could be permanent and serious until, at the earliest, November 2014.
The court awarded the plaintiff general damages of about $70,000 gross (about $32,000 net of approximately $38,000 deductible), damages for loss of income of about $128,000 and housekeeping and home maintenance expenses of about $45,000.
The court also gave special recognition to the defence medical expert who displayed an exemplary commitment to independence and impartiality.
If you or a loved one have sustained an injury and would like more information about your legal options, we can help. Call the Jasmine Daya & Co. team at (416) 967-9100 or contact us online to schedule a free consultation.
 St Marthe v O’Connor, 2019 ONSC 1585.