Discovering that your baby was injured at birth is a heart-wrenching experience for any parent. Though, in such cases, it’s natural to consider whether to initiate legal action, that is not the most important consideration on most parents’ minds at the time they discover their baby’s injuries. Questions like, “what is the extent of the injury suffered by my child?” “what therapies and interventions will my child require throughout his or her life?” and “how can our family best accommodate our child’s needs?” all should take precedence over deciding whether to sue. It may take months or years before parents are settled enough to speak with a lawyer and assess their legal options.
With that said, Ontario has specific rules regarding the time within which a claim must be brought, as outlined in the Limitations Act. This blog post aims to provide insight into these regulations and address the critical question: “Is it too late to sue?”
The Basic Limitation Period
In Ontario, the Limitations Act governs the time limits for bringing various claims, including medical malpractice claims. Section 4 of the Limitations Act provides that unless another part of the Act states otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. This two-year window is what is known as the basic Limitation period.
Discovery of a Claim
Section 5 of the Limitations Act provides the definition of “discovery.” It specifies that a claim is discovered on the earlier of two dates:
- The day on which the person with the claim first knew:
- That the injury, loss, or damage had occurred.
- That the injury, loss, or damage was caused by or contributed to by an act or omission.
- That the act or omission was that of the person against whom the claim is made.
- That, having regard to the nature of the injury, loss, or damage, a proceeding would be an appropriate means to seek to remedy it.
- 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 the matters referred to in clause (a).
The Exception for Minors
Like most things in life, there are exceptions to the basic rules. Applicable to birth injury claims, the Limitations Act contains an exception for the applicability of the discovery date in determining when the basic limitation period runs for cases involving minors.
Section 6 of the Limitations Act stipulates that the basic limitation period does not run during any time in which the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim.
What this means is that in cases where the injured person is a child, the two-year basic limitation period does not begin to run on the date in which the claim is discovered, but instead on the date that the child attains age of majority (18 years old).
Determining Whether It’s Too Late to Sue
In cases where a baby was injured at birth, determining whether it is too late to sue involves assessing the current age of the injured child. If the child is still under the age of 18 years old, the limitation period has not begun to run. If the child is over the age of 18, but under the age of 20, that child is still in the limitation window and can initiate a claim. If your child has been an adult for over two years, it may be too late to sue.
If your baby was injured at birth, it is crucial to understand the legal time limits for bringing a medical malpractice claim in Ontario. The Limitations Act governs these time limits, and exceptions are made for minors. Seeking legal advice and acting relatively promptly upon discovering the injury is essential to protect your child’s rights and seek the compensation they may be entitled to. Remember that the clock doesn’t start running until your child reaches the age of 18, even if the injury was discovered before then. Consulting with a knowledgeable legal professional can provide the guidance you need to navigate this complex process and ensure your child’s best interests are protected.