Lauesen v. Silverman, 2016 ONCA 327
Released May 3, 2016 | Full Decision [CanLII]
The plaintiff brought an action against her former lawyer for entering into an improvident settlement of her personal injury action. The defendant moved to dismiss the action on the basis that it was statute barred.
The relevant timeline is as follows. The plaintiff, Melody Lauesen, settled her action for roughly $26,000 at mediation in November 2005, on the advice of her lawyer. Ms. Lauesen’s lawyer continued to represent her with respect to her accident benefits claim until 2009, when the lawyer asked for a further monetary retainer to pursue the claim. In 2010, Ms. Lauesen consulted with another lawyer. That lawyer obtained an opinion from a psychiatrist in June 2011 that Ms. Lauesen had suffered a catastrophic impairment. In August 2011, almost 6 years after the original settlement, Ms. Lauesen commenced an action in negligence against her former lawyer.
The motions Judge dismissed the plaintiff’s action on the basis that the limitation period had expired and the action was discoverable by due diligence more than two years before the Statement of Claim was issued in August 2011. The Court of Appeal held that the motion judge had erred in her interpretation of the discoverability provisions of the Limitations Act and dismissed the motion, holding that the claim was not statute barred and could proceed to trial on the merits.
The Court of Appeal held that it was not unreasonable or Ms. Lauesen to take just over a year before seeking legal assistance from another lawyer, and she exercised due diligence in discovering her claim. The Court found it notable that Ms. Lauesen only discontinued her relationship with her first lawyer because she was unable to afford further assistance from her and not because his Lauesen had concerns about the sufficiency of her settlement. In addition, there was no indication that Ms. Lauesen had any basis to believe that she might have a claim against her former lawyer or that her lawyer had been negligent in advising her to accept a settlement. As a result, there was nothing for her to investigate until she had met with a second lawyer.