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In Ontario, lawsuits must be commenced within two years from the date that the plaintiff knew or ought to have known about the alleged negligence. That means that if you do not start a lawsuit within two years, you may lose your right to sue altogether. Understanding the nuances of limitation periods for suing is crucial for plaintiffs seeking justice. Central to this understanding is the discoverability exception within Ontario’s Limitation Act, which plays a pivotal role in determining when a legal action can be initiated, especially in cases where the harm or injury may not be immediately apparent.

What is the Discoverability Exception?

The discoverability exception is a legal principle that extends the start of the limitation period beyond the initial occurrence of harm or injury. It acknowledges that in some cases, plaintiffs may not immediately discover that they have suffered harm, and thus, the clock for the limitation period starts ticking only when they discover or ought to have discovered the injury, loss, or damage.

Key Elements of the Discoverability Exception:

  1. Date of Discovery: The limitation period under the discoverability exception begins to run from the date when the plaintiff first knew or ought to have known that:
    • They suffered harm, injury, or loss,
    • The harm, injury, or loss was caused by the act or omission of the defendant, and
    • A legal action would be an appropriate means to seek a remedy.
  2. Reasonable Diligence: The determination of when the plaintiff ought to have discovered the harm is based on the principle of reasonable diligence. This involves considering whether a reasonable person in the plaintiff’s circumstances would have discovered the essential elements of the claim through reasonable efforts and investigation.
  3. Continuous Accrual: In situations where harm or damage continues over time (i.e., ongoing negligence), the limitation period for each new instance of harm may start running when it is discovered or ought to have been discovered.

Application in Various Types of Claims:

The discoverability exception is particularly relevant in various types of civil claims, including medical malpractice: There are many instances where a patient may not immediately realize that medical treatment has caused injury or complications. This is true in this area of law in particular, because patients are often unwell when they seek medical treatment to begin with. It can be difficult to ascertain what caused a worsening.

Legal Implications and Challenges:

Navigating the discoverability exception can pose challenges for both plaintiffs and defendants:

  • Evidence Preservation: Plaintiffs must act diligently to investigate and gather evidence once they discover or suspect harm to ensure the viability of their claims.
  • Defendant’s Position: Defendants may contest the application of the discoverability exception, arguing that the plaintiff should have discovered the harm earlier or that the limitation period has expired.
  • Judicial Interpretation: Courts play a crucial role in interpreting the discoverability exception on a case-by-case basis, weighing factors such as the plaintiff’s knowledge, efforts to investigate, and the nature of the harm or loss.

Seeking Legal Advice:

Given the complexities involved in determining the application of the discoverability exception, seeking advice from experienced legal professionals is essential. Lawyers specializing in civil litigation can provide invaluable guidance, assess the merits of potential claims, and navigate the intricacies of limitation periods to ensure that legal rights are protected and remedies pursued effectively.