If you have been injured in a motor vehicle accident, there are likely many concerns weighing on you: dealing with pain, recovering from injuries, and managing your bills and household. Starting a lawsuit probably isn’t the first thing on your mind, but it is critical that you don’t wait too long before taking legal action—because under the laws of Alberta, you have a time-limited right to decide whether to sue.
What is a Limitation Period?
A plaintiff does not have an unlimited right for the rest of their life to start a lawsuit; there is a statutory deadline by which you must take legal action. The deadline to start a lawsuit is known as a limitation period. Limitation periods apply to all types of lawsuits and are crucial timelines that cannot be missed. After the limitation period expires, the plaintiff is considered to be statute-barred from suing. This doesn’t mean you can’t start a lawsuit, just that the defendant has an extra defence to it. Essentially, if you start your lawsuit after the limitation period has expired, that expiry is a complete defence to your lawsuit. That is, you can still spend the time and money to start a lawsuit, but the defendant can easily have it dismissed and you may be required to pay their court costs.
While it might seem unfair that a plaintiff who has been harmed by another person can lose the right to sue the person responsible, there are several reasons for putting a time limit on a plaintiff’s ability to sue. First, time limits are necessary to provide fairness to defendants. A defendant should definitively know at some point whether or not they will be sued, rather than spending the rest of their lives with the threat of a lawsuit hanging over their heads.
Second, time limits help to ensure that lawsuits are brought while evidence still exists. The longer a plaintiff waits to start a lawsuit, the more likely it is that witnesses could move away or die, memories of the events will fade, and documentary or other evidence may be lost or destroyed. As the availability of evidence declines, this will cause harm to both the plaintiff’s and the defendant’s ability to present their sides of the case.
How are Limitation Periods Calculated?
The rules around limitation periods are set out in the Alberta Limitations Act. In most circumstances, a lawsuit must be started within two years from the time when the plaintiff knew or ought to have known:
- that their injury or loss occurred;
- that the defendant was responsible; and
- that their claim warranted legal proceedings.
The two-year limitation period only starts to run when all three of these criteria are met.
For example, if you were hit by a car today, the two-year limitation period would likely start running on the day you were struck by the vehicle. That’s the day that you knew you were injured, who caused the injury, and that you had a reason to sue. Similarly, if you walked into your apartment and discovered water pouring from a burst pipe, the two-year limitation period would likely start to run when you first see the water.
However, say you had surgery and a sponge or surgical gauze was left inside you. There could be severe complications from this, such as infection, obstruction, or death. That said, you could suffer some unexplained but not too uncommon or distressing symptoms like fever, a physical mass, or pain for years before a CT scan detects that the cause of your symptoms is related to your surgery (in this example, a sponge or surgical gauze left inside your body). Your two-year limitation period would likely start to run the day you were informed that the sponge was still inside you. This concept is known as discoverability: your two-year limitation period starts to run the day that the claim was discoverable.
Note, however, that it is not always easy to be sure at what date a court might consider a claim to have been discoverable. Therefore, if you think you would like to commence a lawsuit, it is best to do so as soon as possible to avoid any risk that your claim might be statute barred.
Even where the start of a limitation period is delayed by discoverability, the time to bring a lawsuit is not indefinite. The Limitations Act also sets out an ultimate deadline of 10 years from when the claim arose. This means that, no matter what, a plaintiff only has a maximum of 10 years to sue, even if their claim was not discoverable until after that time. For example, if you are the victim of faulty construction work, and the issue was discovered eleven years after the construction took place, you would be outside the ultimate ten-year limitation period and therefore unable to sue.
Exceptions to the Limitation Period Rules
There are a few exceptions to the two-year limitation period that apply in special cases:
- People under 18 years of age (minors) are not subject to the same limitation period as adults. If a minor is injured in an accident, the Limitations Act delays the start of the limitation period clock until the minor turns 18 years old. Once they are 18, their two-year limitation period starts to run. Additional information on limitation periods and injured children can be found in our post: What happens when a child is injured while a passenger in a vehicle driven by a family member?
- Similarly, people considered under a disability (lacking mental capacity, including due to an injury) may be given an extension on the limitation period for the duration they are disabled.
- There is no limitation period for a claim based on sexual assault or battery.
- If a defendant has acted in a way that fraudulently conceals the fact that an injury has occurred, the limitation period is suspended for the period of the concealment.
Other Circumstances that Affect Limitation Periods
You should also be aware that other much shorter limitation periods may apply if you have been injured on municipal property. These periods may come into play if you have been injured in a slip and fall, for example. To learn more about municipal liability for these types of injuries, review our information on Slip and Falls.
Similarly, if you are claiming that a car accident that caused you injury was due to municipal negligence regarding road maintenance, you may be required to provide written notice to the municipality within 30 days of the accident. The best way to do this is in writing in some way that you can prove you gave the notice, such as by email.
Upcoming Legislative Changes (No-Fault Auto Insurance)
You should also be aware of upcoming legislative changes that may affect your ability to start a lawsuit. The Alberta government has instituted legislation that will move the province to a “no-fault” automobile insurance system, effective January 1, 2027. This legislation will change the way insurance claims and lawsuits related to motor vehicle accidents work in Alberta.
No-fault auto insurance means that if you are injured in a motor vehicle accident, you will not be able to sue the at-fault driver: in order to get compensation for your damages, you must instead rely on your own insurance company. To learn more about the new no-fault system and its potential impact, read our post, “No-Fault Automobile Insurance: What This Means for You.
The no-fault system may affect your limitation period in bringing your lawsuit. Until the new system comes into force on January 1, 2027, your current ability to start a lawsuit is intact: you have two years from the date of your accident to start an action. Current lawsuits and any new actions that arise between now and the date the no-fault system comes into effect will not be impacted by this change. However, all motor vehicle claims arising after the date the no-fault system begins will go through the new system of insurance and potentially limit your claim.
Experienced Injury Lawyers
The no-fault insurance system will also upend the way Albertans can recover damages from motor vehicle accidents. Even though your limitation period gives you two years to start a lawsuit, it is important that you don’t delay starting your claim. If you have been injured in an accident, CONTACT the experienced lawyers at CAM LLP for a free legal consultation to ensure you have the best possible chance to get fair compensation.
