Do Not Sleep on Your Rights

October 8, 2020

By Brian Babcock

If you are wronged, or even think you are wronged, you almost always have a time limit that applies to when you must start a proceeding to protect your rights.

In Ontario, that is generally two years from the date when your claim is discovered by you. There are exceptions, both longer and shorter, but that is not the focus of this discussion.

A recent Ontario Court of Appeal decision addressed the key question of when a claim is discovered. That is crucial to knowing when your limitation period started. Without knowing that, you cannot know when your deadline is. Missing that deadline is fatal to your claim.

In Rumsam v. Pakes , Ms. Rumsam claimed that she suffer damages as a result of medical malpractice, allegedly caused by doctors not properly diagnosing her fractured wrist. More than two years after commencing her action, she tried to add an additional doctor to her action, after evidence came to light identifying that doctor as having reviewed the x-ray report and not notifying her of the suspected fracture.

Adding another person is subject to the same time limits as starting a new proceeding. To bring a claim, you need to know who to sue, so the issue was when Ms. Rumsam knew or ought to have known about the additional doctor’s identity.

That phrase “or ought to have known” is the key.

The evidence was that Ms. Rumsam did not actually know the doctor’s name until shortly before moving to added her.

But section 5 (1) (b) of the Limitations Act provides that a claim is discovered “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known [that they might have a claim]” (emphasis added).

It is not necessary that you know for sure which of several persons is responsible, just that they may be responsible. The law expects you to sue them all in a timely fashion, and sort out who is ultimately responsible later.

In addition, the law does not require that you know the precise name of the responsible person. As long as you could learn that name through reasonable efforts, the time starts to run from the date when a reasonable person could have learned that information, not the date that you – or Ms. Rumsam – actually found out the name. This “due diligence requirement” does not allow you to sit back and wait for someone else to tell you that name.

The evidence showed that as early as August 2013, Ms. Rumsam knew that another doctor had reviewed the x-rays. She knew all the other facts that create the possibility that they were at fault for not preventing her damages. The only thing she did not know was that doctor’s name. That became the starting date for her time limit to add that doctor to her law suit. She waited until 2017 to bring her motion.

Her motion was too late. She was found to have failed to exercise the “reasonable diligence” required by the Limitations Act.

There are many reasons not to sleep on your right to bring a claim. This is just one example. Getting sound legal advice as soon as you suspect you have been wronged is always a sound investment, whether your claim is for medical malpractice, breach of contract, property damage, or any other loss.