Justice Akhtar’s decision in Sorita v. TTC provides a helpful summary of the interaction between the Limitations Act and the statutory threshold in s. 267.5 of the Insurance Act:
[26] As noted earlier, Ontario’s restriction on motor vehicle accident claims is contained in s. 267.5 of the Insurance Act, which provides:
(5) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
[27] Ontario’s no-fault insurance scheme means that, in the Insurance Act context, the limitation clock begins to run when the plaintiff becomes aware that their injuries constitute “permanent serious impairment”. To otherwise commence an action is futile, as no evidence would have been available of a qualifying injury: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, at para. 32. Additionally, the plaintiff in a motor vehicle claim is not required to commence an action before they know that they have a “substantial chance” of success: Everding v. Skrijel, 2010 ONCA 437 (CanLII), 100 O.R. (3d) 641, at para. 11. The inquiry to be undertaken is “whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”: Lawless v. Anderson, 2011 ONCA 102 (CanLII), at para. 23.
Readers of Under The Limit will know not to rely on Lawless v. Anderson when considering the commencement of the limitation period. Contrary to the above, the inquiry is not when the claimant knows enough facts on which to base an allegation of negligence, but when the claimant ought to have knowledge of the section 5 discovery criteria, including that a proceeding is an appropriate remedy. It always bears repeating: the words “cause of action” do not appear in the Limitations Act.
