Mistake as to Seriousness of Injury Does Not Extend Limitation Period

The “discoverability” principle does not permit a limitation period to be extended where a plaintiff delays suing because she does not, at first, realize the seriousness of her injury. This is what the Divisional Court ruled in Smith v. Toronto.In May, 2000, the plaintiff tripped and fell on a sidewalk near her office. She hurt her shoulder. She went back to work (as a dentist) almost immediately, believing that the condition was not too serious. But in August, 2000, she was told that she had suffered a torn rotator cuff and would require surgery. She did not see a lawyer until October, 2000. This action against the City of Toronto was started in November, after the three-month limitation period under the Municipal Act had lapsed.

The defendant (the City of Toronto ) moved to dismiss the claim on the basis of the expired limitation period. The plaintiff argued that the period should not begin to run until she knew or reasonably should have known of the seriousness of her injury.

In the Superior Court, the defence motion was dismissed. The motions judge found that there was a triable issue as to when the limitation period had commenced to run.

But on appeal to the em>Divisional Court, that ruling was reversed. The motion was granted and the action dismissed. The court held that if the plaintiff’s argument were allowed to succeed, “it would effectively give her, and other injured persons like her, the right to extend any applicable limitation period repeatedly from time to time, without any apparent limit, as she gained greater knowledge of the increasing severity of their injury and its consequences. For obvious reasons, such an interpretation would negate the purpose of limitation periods and cause unwarranted confusion to those affected.” 


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