Posted: October 07, 2015
By: Steve Rastin

Ontario’s Limitations Act, 2002 became effective on January 1, 2014. Essentially, it states that no proceeding on a claim should move forward if it has been more than two years since the claim was first discovered. This limitation makes it imperative, for any individual involved in some type of accident or incident where they have been injured, to immediately report the accident to the appropriate authorities, have their injuries formally assessed and consult with a personal injury lawyer to begin taking the necessary steps to make their claim. Waiting too long increases the risk that the limitation period for filing a claim will run out, making it invalid – a dilemma with which Mr. Mohamed Kheriji was recently faced.

Mr. Kheriji was assaulted on July 5, 2009 at an after-hours nightclub, which was located in the basement of a building owned by the defendant. The latter claims they had no idea this after-hours club existed within their property. According to Mr. Kheriji, with no provocation, he was attacked by two bouncers acting on the order of the club manager, Mr. Dwayne Sweeney. This attack led to a head injury that included lacerations to the back of his head, which required staples and sutures.

Despite the severity of the attack, Mr. Kheriji did not file a claim against the defendant until almost four years later, in 2013. He claimed that the reason he waited so long to file was because he suffered such serious head trauma that he had repressed the memory and was only able to remember it after he started attending supportive counseling therapy in June, 2012.  Mr. Kheriji eventually issued a Notice of Action on October 7, 2013.

In his 2015 trial, Kheriji v 14939201 Ontario Limited, Mr. Kheriji sought compensation for damages resulting from the assault. Contrary to Mr. Kheriji’s claim that he’d suppressed his memory of the attack, in a cross examination on July 22, 2015 he admitted that he was aware he’d been injured as a result of the attack and even spoke to a lawyer at the time. He had also visited the Municipal Licensing and Standards Office in December 2009 to determine the identity of the owner(s) of the building where the incident occurred.

Consequently, the defendants sought a dismissal of the plaintiff’s claim based on two factors – one, the fact that the plaintiff waited more than two years after the alleged incident to file a Statement of Claim for damages and two, their belief that they did not owe any duty of care to the plaintiff.

Before moving forward with the motion, Justice Dow advised Mr. Kheriji who was without legal representation, that it would be to his advantage to have a lawyer present but the latter declined to follow this suggestion. Justice Dow also informed Mr. Kheriji that moving forward with the motion could result in the complete dismissal of his action. That is essentially what happened.

Citing the Limitations Act, which allows for a claim after the two year period if the individual can show that they were largely unaware there was a cause for action, Justice Dow ruled in favor of the defendant. His decision was based on the fact that according to various of Mr. Kheriji’s own actions, it was clear that he knew he had been assaulted soon after the attack and had even taken steps to identify the defendant a few  months after the incident.

Further, citing Lawless v. Anderson in which the Court of Appeals ruled on the principle of discoverability, Justice Dow again referenced Mr. Kheriji’s visit to the Municipal Licensing and Standards Office, which not only proved that Mr. Kheriji was aware he may have had a cause for action but that he was clearly actively seeking material facts for a case. It follows that Mr. Kheriji failed to demonstrate that he reasonably was unaware that he had a cause for action years prior to his filing a claim, which meant that his claim failed to meet the limitation timeline. In his decision, Justice Dow noted that this was sufficient reason to dismiss the entire case but he wanted to address the issue of duty of care.

On the matter of the defendant having a duty of care to those on their property, Justice Dow again sided with the defendant, whose legal counsel cited Kim v. Thammavong, Coleiro v. Premiere Fitness Clubs (Erin Mills) Inc. and Blount v. H. Corp. Coiffeurs Ltd. in their defense. Justice Dow’s ruling ultimately came down to the fact that there was no evidence proving that the defendant had any knowledge of an illegal activity, the after-hours club, on the premises. As they were unaware of the club, there was no duty of care or liability for the assault on Mr. Kheriji.

If you or a loved one has been the victim of a personal injury, do not hesitate to contact a lawyer. Waiting too long to make a claim may result in a lost opportunity for settlement.

In your initial consultation with Rastin & Associates, we will review the particulars of your case and give you an honest appraisal of your legal options.  As we proceed in building your claim for compensation, we will support you in getting the best medical treatment for your injuries, and will ensure that the necessary medical evidence is secured to support your claim.  Once the seriousness and persistence of your injuries is established, this information along with the circumstances of your accident and relevant legal precedents will contribute to a determination of a just compensation value.  In most cases, a settlement can be reached through negotiation with the opposing party and/or the insurer without having to go through a lengthy trial.  



 
Disclaimer: This blog is intended to provide information on current issues that may affect people in their everyday lives. We have made every effort to ensure that we relay accurate and easily readable content, however, information found here should never be taken as legal advice. Always speak directly to a lawyer for information specific to your situation.

Call us at Rastin & Associates if you have questions concerning your case or any general queries.

Posted under Event Injury, Personal Injury