Certain requirements must be met before someone can issue claim for personal injury or death, against someone else, arising from a car accident. Among these requirements are applying for accident benefits and providing notice of intention to commence action within 120 days of the accident (“the notice”). Failure to comply with those requirements is not fatal but will be considered by the court that is tasked with awarding damages, in its decision to award costs.
The notice is required to contain certain information, among which is the defendant’s obligation to provide a copy of the notice to their insurer within seven days of receipt. It is also to the benefit of the plaintiff to serve the notice as soon as possible, since no prejudgment interest can accrue on any damages he or she may be entitled to, before the notice is served.
Within 30 days after notice has been served the person intending to commence an action (“the plaintiff”) must provide to the defendant other information, including the name of plaintiff’s insurer, if the plaintiff is making an income loss claim, evidence of his or her income for the year prior to the accident, and if the plaintiff’s claim arises from someone’s death, plaintiff’s consent for the defendant to obtain a copy of the autopsy report.
In accordance with the Ontario Limitations Act, 2002, c. 24, Sch. B. an action for personal injuries suffered as a result of a motor vehicle accident must be commenced within no less than 2 years of it being discovered. Though in some cases one may be able to successfully argue that the claim was not “discovered” for some time after the accident, it is generally unwise to wait longer than two years from the date of accident to issue the claim. The Plaintiff is required to exercise reasonable due diligence in commencing the action within the two-year limitation period. The Plaintiff is not entitled to wait until he or she has proof that her injury meet the threshold requirements – discussed below – before commencing action.
How about derivative actions of family members? Are those also subject to the same two-year limitation period? It has been held that as long as the main plaintiff’s action was commenced within the two-year limitation period, principle of discoverability may allow for action of family members, commenced more than two years after the accident. Each derivative claimant is entitled to have his or her own limitation period, applicable to his or her specific claims, separately ascertained by application of discoverability principle.