Court File and Parties

COURT FILE NO.: CV-20-00635254-0000 DATE: 20220331 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Melissa Bell Plaintiff/Responding Party – and – Corinne Elizabeth Long Defendant/Moving Party

Melissa Bell, Self-Represented Plaintiff/Responding Party Jane E. Sirdevan, for the Defendant/Moving Party

HEARD: March 8, 2022

Vella J.

REASONS FOR JUDGMENT

[1] This is a motion for summary judgment brought by the defendant, Corinne Long ("Long"), against the plaintiff, Melissa Bell ("Bell"), seeking dismissal of the action on the basis that it is statute barred by operation of s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (the "Act").

[2] Bell responds that the requisite limitation period was suspended by operation of s. 7(1) of the Act by reason of incapacity due to her mental and psychological condition. Bell has also now raised s. 5 of the Limitations Act, 2002 and says that, in the alternative, the commencement of the two year basic limitation period was postponed until she discovered her claim against Long.

OVERVIEW

[3] Bell's claim is based in solicitor's negligence against her former lawyer, Long, who acted for her in the context of a family law dispute.

[4] In April 2015, Long was retained by Bell to act on her behalf regarding her response to a motion brought by the father of her son to reduce the amount of monthly child support payable by him in family law proceedings.

[5] The motion was determined by Justice Murray’s Order dated October 6, 2015 (the "2015 Order"). Murray J. reduced the amount of monthly child support payable by the father of Bell’s son (the "Father").

[6] Bell picked up her file from Long's office on December 2, 2015.

[7] Bell and Long then exchanged email correspondence in April 2016 regarding a potential motion to change the 2015 Order to be brought by Bell. However, Long was not retained to undertake this further step.

[8] The lawyer client relationship ultimately broke down as a result of the 2015 Order with which Bell took issue and faulted Long for failing, among other things, to have followed her instructions, include all relevant evidence in her responding record, seek further information from the Father, question the Father and to advance all available arguments at the motion.

[9] In 2016, Bell brought a motion to change the 2015 Order. While she had the assistance of duty counsel and a family support worker, she was initially self-represented in that proceeding. She then obtained a legal aid certificate and retained a lawyer to represent her. The motion resulted in a further order by Murray J. dated June 1, 2017 (“2017 Order”).

[10] Then in April 2018, Bell brought a further motion to change (the “2018 Motion to Change”). She was again initially self represented but had the assistance of duty counsel and a family law support worker and attended a case conference on her own. On October 31, 2018, Bell retained another lawyer to act on her behalf in relation to this motion to change.

[11] Bell then commenced this action by statement of claim dated January 28, 2020. This was more than four years after the 2015 Order and the date she retrieved her file from Long's office.

[12] In her statement of claim and in her responding affidavit, Bell admits that she started the action outside the two year limitation period applicable to her claims, but that the limitation period was either suspended by operation of s. 7(1) or postponed by operation of s. 5(1) the Act.

Summary Judgment Test

[13] Rule 20 provides that the court shall grant summary judgment where it is established on the evidentiary record that there is no genuine issue requiring a trial.

[14] The Supreme Court of Canada, in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, stated that the summary judgment process is to be interpreted broadly, and will be appropriate where it will provide a proportionate and fair adjudication of claims in an affordable, timely and just manner.

[15] The court on a motion for summary judgment should undertake the following analysis:

(1) assume that the parties have placed before it, in some form, all of the evidence that will be available for trial; and

(2) on the basis of this evidentiary record, the court must decide whether it can make the necessary finding of facts, apply the law to the facts, and thus achieve a fair and just adjudication of the case on the merits (Sweda Farms Ltd. v Egg Farmers of Ontario, 2014 ONSC 1200, at para. 33; aff’d 2014 ONCA 878; Mazza v Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9)

[16] For the reasons that follow, I find that this is an appropriate case for summary judgment without the need to resort to the fact-finding powers under r. 20.04. Furthermore, there is no genuine issue requiring a trial, and the motion for summary judgment is granted.

ANALYSIS

Basic Limitation Period

[17] The parties agree that the applicable limitation period governing the causes of action pled by Bell in her statement of claim is the two year limitation period established in s. 4 of the Limitations Act, 2002 which states:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Statutory Discoverability Test

[18] Bell did not plead in her Statement of Claim or Reply that she did not discover her claim until sometime within the two years preceding the issuance of the statement of claim. However, in her factum dated February 28, 2022, she raised the issue of discoverability for the first time. As Bell has raised it, and Long has responded without the need for an adjournment, I have considered this issue.

[19] Section 5 of the Act sets out the discoverability test, and the presumption, applicable to Bell's claims:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[20] The factors stipulated in s. 5(1) are cumulative. All must be met before a person will be deemed to have discovered her claim.

[21] Bell relies on the following alternative events as triggering the commencement of the limitation period under s. 4 of the Act:

(i) The June 1, 2017 Order of Justice Murray; or

(ii) The complaint Bell filed with the Law Society of Ontario against Long made on November 9, 2018 and ultimately dismissed in 2020; or

(iii) The date Bell received Long's productions, which was on July 23, 2021.

[22] Dealing with the first event, the statement of claim was issued more than two years after the release of Justice Murray's June 2017 Order and therefore does not assist Bell, irrespective of the merits of her argument. Bell chose this Order because it, in her view, reflected the outcome that she claims Long should have achieved in 2015, but for Long's alleged negligence.

[23] Second, Bell made a complaint about Long to the Law Society of Ontario ("LSO") in November 2018. The LSO rejected the complaint on September 26, 2019, without proceeding to a hearing. Bell requested a reconsideration, and the LSO again rejected the complaint on March 4, 2020.

[24] The LSO complaint and/or the outcome of the LSO complaint does not delay the date on which Bell "discovered" her claim. A law society complaint is not an alternative dispute resolution process, within the meaning of s. 5(1)(iv) of the Act, since the LSO discipline process does not address claims based in negligence. Rather, the LSO only adjudicates complaints arising from alleged professional misconduct. As such, the LSO process does not provide remedies akin to those available in civil proceedings. Rather, in appropriate cases, a successful complaint will result in disciplinary sanctions against the offending lawyer. Accordingly, even if Bell's complaint to the LSO had been resolved in her favour, she still would have had the option of suing Long for damages arising from negligence, assuming it was brought within the timeframe provided by the Act. In other words, the LSO complaint process did not provide an adequate alternative dispute resolution process to civil litigation and the associated potential remedies that could operate to postpone the commencement of the limitation period (Dass v. Kay, 2021 ONCA 565, at para. 27).

[25] Bell mistakenly believed that the LSO's discipline process was an alternative dispute resolution that satisfied s. 5(1)(iv) of the Act. However, an erroneous belief with respect to the law does not postpone the commencement of the limitation period (Nicholas v. McCarthy Tetrault, 2008 ONSC 54974 at para 27, aff'd 2009 ONCA 692, 254 O.A.C. 197).

[26] Third, the fact that Bell discovered further evidence of potential "new" matters relating to her overall claim of lawyer's negligence against Long as a result of receiving Long's productions through the documentary discovery process does not assist her. First, Bell did not provide particulars of the "new" facts she discovered other than that they are in the nature of the existing lawyer's negligence claim. Furthermore, Bell need not have knowledge of all of the facts underlying her claim to trigger the commencement of the limitation period. It is sufficient that she was in possession of sufficient material facts comprising her claim in order to trigger the commencement of the applicable limitation period: Tender Choice Foods Inc. v. Versacold Logistics Canada Inc., 2013 ONSC 80, at paras. 55-61.

[27] Bell clearly discovered her negligence claim prior to receiving Long's productions as evidenced by the fact that she started her action in January 2020. As reflected in Bell's factum at para. 35, the limitation period ceases to run once the claim has been issued.

[28] Bell relies on cases such as Novak v. Bond, 1999 SCC 685, [1999] 1 S.C.R. 808 and M.(K.) v. M.(H.), 1992 SCC 31, [1992] 3 S.C.R. 6. However, in those cases the plaintiffs had presented evidence, including expert medical and psychological opinion evidence, adduced under the common law doctrine of reasonable discoverability to delay the commencement of the applicable statutory limitation periods.

[29] In Novak v. Bond, the Supreme Court of Canada found that it was reasonable for the plaintiff to have delayed starting her claim against her treating doctor (for medical malpractice arising from an alleged misdiagnosis of a cancerous lump on her breast) until she tried further surgery to remove the cancerous lump and subsequent debilitating cancer treatment for a year. In that case, the Court found that it was reasonable for the plaintiff to devote her efforts to getting better with the hope that litigation would not be necessary. In this way, s. 5(1)(iv) of the Limitations Act, 2002 captures the same factor as was developed in Novak.

[30] In M.(K.) v. M.(H.), the Supreme Court of Canada applied the common law reasonable discoverability test to a historical childhood sexual assault matter and found that a survivor must understand the causal connection between the sexual assault and the harm caused by it. This application of the doctrine of reasonable discoverability in the civil sexual assault context captured the fact that the harms caused by sexual assault are often "invisible" (psychological in nature) and this case established the rebuttable presumption that it is not until the survivor is in therapy that they are generally able to make the connection between their harms and the sexualized misconduct. While I recognize that Bell has alleged that she was a victim of sexual assault at the hands of the father of her child, this lawsuit does not seek damages arising from sexual assault, but rather from negligence allegedly caused by her former lawyer.

[31] Neither of these cases assist Bell. Recognizing that s. 5(1) of the Act is substantially a codification of the common law doctrine of reasonable discoverability, Bell did not meet the test. There is no admissible opinion or other medical or psychological evidence in the record to suggest that she did not discover her claim until some point within two years of issuing her statement of claim, and the three events that Bell relies upon as triggering the limitation period do not meet the factors set out under s. 5(1) for the reasons stated. While Bell attached various medical records and reports as exhibits to her affidavit, none of these are admissible for the truth of their contents. They had to be exhibits to affidavit(s) from the authors of those records and reports in order to meet the evidentiary threshold of admissibility for the truth of the content.

[32] Accordingly, and subject to the incapacity issue, I find that Bell discovered her claim well beyond the two year period prior to the commencement of this action.

The Law of Incapacity Under Section 7 of The Limitations Act, 2002

Presumption and Burden of Proof

[33] Bell's primary argument is that the limitation period was suspended by operation of s. 7 of the Limitations Act, 2002 such that her two year limitation period did not expire prior to issuing of her statement of claim (Bell Affidavit, para. 21 and her Reply dated September 23, 2020 at para. 9 and excerpted legislation following para. 13).

[34] A plaintiff is presumed to be capable of commencing a proceeding unless she is proven to have suffered from an incapacity within the meaning of the Limitations Act 2002 pursuant to s. 7(2). The presumption of capacity reflects the fundamental right of personal autonomy, including the freedom to make decisions for oneself.

[35] The party asserting incapacity has the burden of proving it. In this case the burden falls on Bell to prove that she was incapable of commencing this action sooner and that the period of incapacity therefore suspended the running of the basic limitation period of two years long enough to have preserved her action.

Test for Incapacity

[36] Section 7 of the Limitations Act, 2002 states:

7(1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim.

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.

[37] Bell characterizes her incapacity as stemming from a diagnosis of a learning disability and cognitive deficits that was first made in 2014 and which she characterizes as permanent and ongoing, together with posttraumatic stress disorder (“PTSD”) and a generalized anxiety disorder diagnosed since at least 2004, also ongoing as at the date of her affidavit.

[38] Bell relies, in part, on Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, 120 O.R. (3d) 768. At para. 35 of Landrie, the court confirmed that the onus to prove incapacity is on the party relying on s. 7 and that medical/psychological evidence (in the form of affidavit or in person testimony of a treating or expert health care practitioner) is required to establish incapacity. At para. 29, the court also observed that s. 7 of the Limitations Act, 2002 "is more liberal and generous than s. 47 of the former Limitations Act".

[39] The problem is that the mere fact of suffering from these disorders, cognitive deficits and a learning disability is not enough, on its own, to meet the legal test of incapacity within the meaning of s. 7 of the Limitations Act, 2002. Rather, Bell must also demonstrate with evidence that the effect of her psychological or mental condition was to render her incapable of commencing litigation sooner.

[40] More specifically, the legal definition of incapacity for purposes of s. 7 of the Act requires more to be demonstrated than a bald diagnosis of a psychological or medical condition. Rather, a person will be found "incapable" only where they lack the physical, psychological or mental capacity to conduct litigation (see Deck International Inc. v. The Manufacturers Life Insurance Company, 2012 ONCA 309 at para. 6 and Hussaini v. Freedman, 2013 ONSC 779 at para. 51.)

[41] The Court of Appeal has found that a plaintiff has the capacity to make decisions if they are able to understand the information relevant to making the decisions and are able to appreciate the reasonably foreseeable consequences of that decision: Re Ohenhen, 2018 ONCA 65, 140 O.R. (3d) 616, at para. 81.

[42] In Hengeveld v. Ontario (Transportation), 2017 ONSC 6300, at para. 21, the court listed the following factors as informing an analysis determining whether a person under a disability required a litigation guardian:

(a) a person’s ability to know or understand the minimum choices or decisions required to make them;

(b) an appreciation of the consequences and effects of his or her choices or decisions;

(c) an appreciation of the nature of the proceedings;

(d) a person’s ability to choose and keep counsel;

(e) a person’s ability to represent him or herself;

(f) a person’s ability to distinguish between relevant and irrelevant issues; and,

(g) a person’s mistaken beliefs regarding the law or court procedures.

[43] These factors, in turn, were considered by the Court of Appeal in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 96, to be relevant to, but not always necessary for or determinative of, capacity under s. 7(1)(a) of the Limitations Act, 2002:

I agree that the factors listed in Huang/Hengeveld, while not exhaustive, provide helpful indicators of capacity under s. 7(1)(a). They provide concrete and objectively verifiable indicators of a potential litigant's capacity to commence an action: if absent, this tends to support a finding that the person was incapable of commencing a proceeding in respect of the claim; if present, this tends to weigh against a finding that the person was incapable of commencing a proceeding in respect of the claim. These factors are neither necessary nor sufficient in themselves to establish incapacity; they are indicia that guide a holistic weighing of all the evidence on capacity in the context of the case. Depending on the circumstances, it may also be relevant for a court to consider other factors.

[44] The Court, in Carmichael, also considered, at paras. 98-99, what the nature of the three types of incapacity under the statute mean, noting that psychological condition can be related to mental condition:

A "physical condition" is a condition arising in or relating to a person's body. A "mental condition" is a condition affecting or arising in a person's mind, and includes mental disability, mental incompetency, or mental illness. And a "psychological condition" is a condition relating to the mental or emotional state of a person. [citation omitted]

[45] Finally, the Court, at paras. 101-104 of Carmichael, stated:

The physical, mental, or psychological condition must be the cause for the incapacity relied on under s. 7(1)(a). The incapacity cannot arise from other sources, such as a lack of sophistication, education or cultural differences. [citations omitted]

Lastly, I agree with the submission in Mr. Carmichael's factum, that a plaintiff may be incapable because of a psychological condition where the evidence "is clear that initiating the lawsuit would pose an unacceptable risk to the plaintiff's psychological integrity".

Section 7(1) suspends the running of the limitation period in s. 4 only "during any time" in which the person is incapable, and thus begins to run again once the incapacity ceases. [citations omitted]

A potential litigant will usually require persuasive medical or psychological evidence to prove that they lacked the capacity to commence the proceeding in respect of the claim. [citations omitted]

See also, Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264, 93 E.T.R. (3d) 285 at para. 17; Kim v. The Manufacturers Life Insurance Company, 2014 ONSC 1205, 31 C.C.L.I. (5th) 252 at paras. 55 and 58, aff'd 2014 ONCA 658, 40 C.C.L.I. (5th) 12; Winmill v. Woodstock Police Services Board et al., 2017 ONSC 2528 at para. 32, rev'd on other grounds 2017 ONCA 962, 138 O.R. (3d) 641; Cooper v. Comer, 2017 ONSC 4142 at para. 57.

[46] In Carmichael, the Court further stated that an assessment of incapacity may also take into account other, non-medical, evidence of the person's ability to function for purposes of commencing a legal proceeding such as being able to understand the litigation in question, having capacity to review and sign legal documents, managing their financial and personal or business affairs, reaching out to and speaking to others about their mental illness, having an appreciation of the consequences and effects of their choices and decisions, choosing and keeping a lawyer, and navigating other legal processes. These are objective indicators of whether the psychological condition (in this case) are the cause of the person's inability to commence (or commenced in the past) the subject litigation.

[47] Therefore, in summary, the party relying on incapacity to postpone or suspend the limitation period under s. 7(1)(a):

(i) bears the burden of proof to establish incapacity;

(ii) will always have to provide medical or psychological evidence of the condition under s. 7(1)(a) that it is relying on as the basis of incapacity from a qualified health care practitioner who has testified in person or tendered an affidavit;

(iii) must demonstrate, generally by persuasive expert medical or psychological evidence that it is the condition or conditions relied upon that has caused the incapacity; and

(iv) must establish the timeframe under which they suffered under the incapacity.

[48] Again, the mere fact that one has a diagnosis of a psychiatric disorder, psychological disturbance, learning disability or cognitive deficits is not in and of itself sufficient to meet the test. Some disorders may well presumptively meet the test for incapacity (such as advance stages of dementia or Alzheimer's disease, being in a comatose state, or suffering from a severe traumatic brain injury), but whatever the diagnosis is, it must still be demonstrated by expert opinion evidence that as a consequence of that diagnosis the person was/is unable to meet the test set out by the Court of Appeal in Ohenhen and as further developed in Carmichael.

[49] One consequence of being declared incapable within the meaning of s. 7 of the Act is that the court will declare that person to be under a legal disability requiring the appointment of a litigation guardian to act on behalf of the person. This means that the person declared incapable has lost the legal ability to control her legal proceeding.

[50] In assessing this issue, the court will also look at relevant surrounding factors that speak to the person's ability to function insofar as is relevant to determine whether they lacked or had capacity to commence the subject litigation. This is an objective test.

[51] Against this general framework is the presumption that the person at issue has capacity, and the care the court will take before coming to the conclusion that the person lacks capacity, in light of the rights of autonomy and personal self-determination.

Has Bell Met the Test for Incapacity?

[52] As already reviewed, Bell has adduced a significant number of medical and other records, reports and letters in support of her claim that she suffered from an incapacity. Unfortunately, these documents were only filed by way of exhibits to Bell's lengthy affidavit, and not as exhibits to affidavits from the authors of any of those documents. More particularly, there are no affidavits from any of the referenced health care practitioners attesting to the truth of the documents’ contents, or affirming any opinions, findings, clinical observations or conclusions reflected in them. This is a fatal flaw in Bell’s response.

[53] Furthermore, a close review of the medical records attached as exhibits to Bell’s affidavit, taken at face value, would not meet the test for establishing incapacity within the meaning of s. 7 of the Limitations Act, 2002 in any event.

[54] Bell deposes that she has been diagnosed with psychological disorders and disturbances such as PTSD and generalized anxiety disorder, and cognitive disorders that constitute a learning disability. This position is reflected in the documents attached to Bell's affidavits by way of exhibits. Long does not deny that Bell suffers from these conditions.

[55] According to Bell's affidavits, her psychological condition, including PTSD, generalized anxiety disorder, cognitive deficits and learning disability manifested before 2015 and continue as at the date of her affidavit.

[56] There is no finding or opinion expressed in any of the exhibits to the effect that Bell is or was ever not able to manage her financial or personal affairs or that she required a litigation guardian to commence or continue any litigation, including the subject family law proceedings.

[57] Bell's response is that why would these findings be reflected in any of the medical records given that they all predated the commencement of her civil proceeding? In other words, the health care professionals and practitioners did not turn their mind to the issue of whether she had the capacity to commence a civil lawsuit during any time prior to her actually commencing it. In fact, this is the very hurdle that Bell faces in this motion: no qualified health care practitioner has opined that she lacked capacity to commence this action or any legal proceeding prior to January 2020.

[58] Bell’s affidavits and exhibits also do not demonstrate a causal connection between any of the psychological/psychiatric disorders or disturbances, or her cognitive deficits or learning disability, and an inability to have made a decision to start a legal proceeding, retain a lawyer, instruct a lawyer or the ability to conduct a lawsuit. The medical records attached to Bell's affidavit, again taken at face value, at most provide bald diagnoses, and make recommendations to support Bell's request for assistance in order to acquire the knowledge and benefit from the expertise of professionals familiar with family law proceedings.

[59] Furthermore, during the period from October 2015 to January 2020, Bell has sworn affidavits, retained and instructed counsel, acted on her own behalf and sought the assistance of duty counsel and a family law support worker regarding the family law proceeding. She has also sought treatment for her conditions.

[60] There is evidence in the record, including from Bell's own Affidavit, that show that Bell was capable of advancing her family law proceeding with the assistance of duty counsel and a family law support worker (see, Bell Affidavit, paras. 229, 231-238). In particular, she prepared and filed motion materials seeking to change the 2015 Order in 2016 ("2016 Motion to Change"). Bell was also issued a legal aid certificate and retained counsel to act on her behalf with respect to her 2016 Motion to Change.

[61] The 2016 Motion to Change was determined by order of Justice Murray dated June 1, 2017. Bell states that she obtained the relief that she had wanted in 2015, and that Long had allegedly advised her was not possible at that time.

[62] Then Bell brought a further motion to change the 2017 Order of Murray J. in 2018 ("2018 Motion to Change"). Bell initially was self represented (with the assistance of duty counsel and a family law support worker) and then on October 31, 2018 retained a third lawyer to act on her behalf.

[63] Finally, Bell filed a complaint against Long with the LSO on November 9, 2018 based on Long's prior representation of Bell and featuring similar allegations to the ones advanced in this lawsuit. The LSO dismissed the complaint on September 26, 2019 concluding there was insufficient evidence to proceed. Bell asked for a reconsideration on December 12, 2019, and the LSO confirmed its original decision and closed its file on March 4, 2020.

[64] These facts are uncontested.

[65] Bell pointed out that her psychiatrist, Dr. Thirlwell, wrote a letter dated July 13, 2016 (Exhibit AAA to Bell's Affidavit) in which it was stated that Bell was unable to adequately represent herself without the assistance of a lawyer (through legal aid). This letter appears to have been written in support of Bell's request for a legal aid certificate. The latter does not contain an opinion that suggests that Bell was incapable within the meaning of the Limitations Act, 2002 such that she would require a litigation guardian. Rather, it implies that Bell was capable of retaining and instructing a lawyer, but that as a layperson she would benefit from having a lawyer.

[66] Bell also relied on letters from her family physician and psychiatrist from June 2018 supporting her request for an accommodation from the court when she was self-represented regarding her 2018 motion. Again, her health care professionals did not raise capacity concerns which would have warranted the appointment of a litigation guardian to represent her interests and give instructions on the motion.

[67] In fact, the evidence advanced by Bell demonstrates that she currently, and throughout the underlying family law proceeding (from 2015 to 2018), notwithstanding her diagnoses of PTSD, generalized anxiety disorder, a learning disability, and cognitive deficits:

(a) is able to know or understand (on a cognitive level) the minimum choices or decision required to make them: e.g., there is nothing in the psycho-vocational assessment report that suggests that Bell is functioning at less than an adult level. Furthermore, in this lawsuit, Bell claimed that Long failed to follow her instructions and as a result she achieved an unsatisfactory result, and that she recognized this by 2016 when she took steps to vary the 2015 Order;

(b) appreciated the nature of legal proceedings;

(c) was able to hire and keep, or dismiss, lawyers (including not continuing with Long and retaining a lawyer on legal aid);

(d) was able to navigate another legal process; namely the LSO complaints process;

(e) chose to file a complaint with the LSO rather than commence the within action;

(f) was able to represent herself, albeit with assistance from those who have experience in family law proceedings and with appropriate accommodations;

(g) recognized that she required legal assistance and contacted the Barbra Schlifer Clinic which then assisted her through the family proceeding;

(h) recognized that she required health care assistance with respect to her psychological condition and obtained that assistance;

(i) participated in a psycho vocational assessment;

(j) was able to distinguish between relevant and irrelevant issues; and

(k) was able to understand and navigate the law and court procedures with the benefit of the assistance of a family court worker, legal aid lawyer, and duty counsel from time to time.

[68] There is also no evidence in the record giving any indication that lawyers or others who interacted with Bell on a professional basis suggested that Bell was unable to manage her own affairs or required a litigation guardian with respect to the underlying family law proceedings at any stage.

[69] Indeed, in the context of this action and this motion, Bell has demonstrated that she was able to prepare a detailed statement of claim, amend her statement of claim on September 17, 2020, prepare a reply on September 23, 2020, prepare extensive affidavit evidence and a factum for this motion, initiated and attended at civil practice court before Myers. J. on January 12, 2022 and appeared before me to make coherent and capable submissions.

[70] Accordingly, Bell has not proven that she was incapable of commencing this proceeding sooner than she did by reason of her psychological or mental condition for purposes of postponing or suspending the applicable limitation period under s. 7(1). The presumption of capacity established by s. 7(2) of the Act has not been rebutted.

Disposition and Costs

[71] The limitation period expired prior to the commencement of this action. Accordingly, there is no genuine issue requiring a trial, summary judgment is granted, and this action is dismissed.

[72] The parties are to exchange cost outlines if they have not already. I will receive Long’s cost outline and written submissions within 10 days from the release of these reasons. Bell will then provide her cost outline and reply written submissions within 10 days thereafter. The written submissions shall not exceed three pages, double spaced, from each of Long and Bell. The documents will be sent to my attention in care of my judicial assistant.

Justice S. Vella

Released: March 31, 2022