Don’t Miss the Boat! Identifying Defendants and Limitation Periods

In Ontario, when you are injured, there is a basic presumptive two year limitation period in which you must start a lawsuit. The limitation period is presumed to begin to run on the day the accident took place, subject to discoverability[1]. While the intricacies of limitation periods is beyond the scope of this article, it is generally recommended that you start a lawsuit within two years from the date of the accident if possible. If a lawsuit is started after the expiry of a limitation period, the claim can be statute barred and therefore be dismissed.

Part of starting a lawsuit is properly identifying the defendants. In straight forward cases, the defendants can be easily identified. For example, if you are injured in a car accident involving one other vehicle, the at-fault driver and owner of the other vehicle are named as defendants. However, many times, the identity of all defendants are not readily available or known to the injured person at the time of the incident. It is not unusual for the identity of possible defendants to emerge after a lawsuit is started, and more than two years after an accident. This happens for a variety of reasons.

When an injured person, or his or her lawyer, discovers the identity of a possible defendant more than two years after an accident, that possible defendant needs to be added to the lawsuit. This generally requires some evidence as to why the injured person, or his or her lawyer, did not or could not discover the possible defendant by reasonable diligence prior to the expiration of the presumptive two year limitation period. In a recent case[2], the injured person tripped while crossing a municipal street and started a lawsuit against the municipality. Years later, and more than two years after the accident, it was discovered that some third party contractors were involved and the court allowed the injured person to add the contractors to the lawsuit.

It is important that, immediately following an accident, proper steps be taken to ascertain the identity of all potential defendants. Failure to do so can lead to delay or result in a claim being barred by statute. An experienced personal injury lawyer can help you make sure that all appropriate steps are taken promptly.

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.

[1] There are exceptions. For example, the limitation period does not run during the time that a person with the claim is a minor and not represented by a litigation guardian.

[2] Garisto v City of Toronto, 2018 ONSC 5595