Limitation period suspended when psychological stress makes claimant incapable of proceeding: Ontario court

Ontario’s Court of Appeal has allowed a woman’s negligence action against her former lawyer to proceed despite the claim being filed after the two-year limitation period, because the limitation period did not run during the time she was under psychological stress.

A motions judge in the Ontario Superior Court ruled Vasiliki Soteropoulos’s action against her ex-lawyer was statute-barred under Ontario’s Limitations Act because it was commenced May 2, 2011, more than two years after her claim was first discoverable in March 2009.

In late March 2009, Soteropoulos’s newly retained counsel advised her that she should consult someone about whether or not her previous counsel was liable for his handling of mediation in family law litigation.

In dismissing her case, the motions judge cited a judicial decision in Lawless v. Anderson: “She was aware of what was wrong, why it was wrong, what would have to be done to correct it and who was responsible. In other words, [she] had all of the material facts necessary to determine that she had prima facie grounds for inferring that the respondent had been negligent.”

Soteropoulos appealed, submitting that the clock on the limitation period should not have been running at that time, since she was under too much psychological stress to commence an action.

At the Court of Appeal, she argued the motions judge failed to consider s. 7 of the Limitations Act, which states the limitation period “does not run during any time in which the person with the claim… is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition.”

The Court of Appeal observed she did not raise this argument before the lower court, and upheld Soteropoulos’s appeal. “It is at least arguable on the basis of the statement of claim alone that the appellant’s mental and psychological condition stopped the running of the limitation period for at least two months from March 2009 onward.”