COURT OF APPEAL FOR ONTARIO

DATE: 20120419

DOCKET: C54686

Laskin, Rosenberg and Goudge JJ.A.

BETWEEN

Vasiliki Soteropoulos

Plaintiff (Appellant)

and

Michael Charles

Defendant (Respondent)

David A. Balaban, for the appellant

Sean Dewart, for the respondent

Heard and released orally: April 11, 2012

On appeal from the judgment of Justice Sidney N. Lederman of the Superior Court of Justice, dated November 10, 2011.

ENDORSEMENT

[1] The appellant argues a single ground of appeal: the motion judge failed to consider s. 7 of the Limitations Act, and specifically whether the limitation period stopped running because of the appellant’s mental and psychological condition. The appellant submits that having regard to s. 7, it is not plain and obvious that her claim should be dismissed.

[2] We agree with this submission. However, in fairness of the motion judge, we note that s. 7 was not raised before him.

[3] The appellant acknowledges that her claim was discoverable in March 2009. She began this action in May 2011. Therefore, if s. 7 stopped the running of the limitation period for two months the appellant’s claim is not statute barred. Especially considering the appellant’s allegation in paras. 7, 39 and 41 of her statement of claim, and reading her pleadings generously as we are required to do, we conclude that it is not plain and obvious the claim is statute barred. 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.

[4] Accordingly, the appeal is allowed, the order of the motion judge is set aside and the defendant’s Rule 21 motion is dismissed. The appellant will have her costs of the motion in the amount of $500, inclusive of disbursements and applicable taxes, and $1,500 for the appeal, inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“M. Rosenberg J.A.”

“S.T. Goudge J.A.”