The laws in Ontario provide that individuals who are the victim of medical negligence must commence a lawsuit for their medical malpractice within a prescribed period of time. A person can initiate their lawsuit by issuing either a Statement of Claim, or in the event there is not enough time to prepare the Statement of Claim before the limitation expires, a plaintiff can issue a Notice of Action. Once the Notice of Action is issued, a plaintiff has 30 days to file their Statement of Claim.
Ontario laws establish a basic limitation period. That limitation period can be extended in a few very narrow and specific situations. But first, this article with start with the basic limitation period.
What is the Basic Limitation Period?
2 years. A plaintiff injured by medical negligence has two years from the day they discovered the negligence to commence a lawsuit. But what does it mean to “discover” that negligence? This is known as the “Discoverability Principle”. Discovering negligence is a fact-based analysis in each plaintiff’s specific case.
Recently, the Supreme Court of Canada included in a decision clarification on when a claim is discovered. The Court held “a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts on which a plausible inference of liability on the defendant’s part can be drawn.”
The Court also held that this “plausible inference” is something that must generate a permissible fact inference. In effect, this fact-based analysis is nuanced, and yet, very crucial in determining when the limitation period begins running. In the context of medical malpractice, this can be a difficult exercise. If you think you may have been a victim of medical malpractice, do not wait before reaching out to our team of experienced medical malpractice lawyers at Bogoroch & Associates LLP.
What about minors or other incapable individuals?
The laws in Ontario provide more time to start a lawsuit when the plaintiff is a minor (less than 18 years old). The two year limitation period just mentioned above, does not begin to run at any time while the plaintiff is a minor (less than 18 years old) and while the minor is not represented by a litigation guardian.
Similarly, for anyone incapable of starting a lawsuit because of physical, mental, or psychological disability and not represented by a litigation guardian, the limitation period does not begin to run until the incapable person becomes represented by a litigation guardian. It is important to note that everyone is presumed to be capable of starting a lawsuit unless it is proven that they are not.
The “Ultimate Limitation Period”
Because of the rules regarding discoverability, it is entirely plausible that a claim might not be “discovered” for many years. To guard against this, our laws have established an ultimate limitation period. Simply put, no lawsuit can be started for any claim after the 15th anniversary of any act or omission which the claim is based took place. The courts have enforced this rule rigidly.
What to do if you think you were a victim of medical malpractice
The exercise of discovering a claim and determining the applicable limitation period can be difficult. Fortunately, our team of experienced lawyers are here to help. Choosing an experienced medical malpractice lawyer is critically important, because without that knowledge and skill, the occasionally nuanced exercise of determining when the limitation period began to run can be very difficult, and even worse, it may be missed. The lawyers of Bogoroch & Associates LLP have the knowledge and experience to investigate your claim to determine when the limitation period began running, and to move your case forward with zealous skill and ability.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your accident or medical malpractice claim to settlement or trial while helping you navigate complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer-rating publications.
If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation.