Carmichael v. GlaxoSmithKline Inc.

Ontario Reports

Court of Appeal for Ontario

Trotter, Zarnett and Jamal JJ.A.

July 8, 2020

151 O.R. (3d) 609 | 2020 ONCA 447

Case Summary

Appeal — Jurisdiction — Court of Appeal — Plaintiff found not criminally responsible for killing his son — Plaintiff having psychotic delusions while taking anti-depressant manufactured by defendant — Motion judge finding that plaintiff lacked capacity to sue manufacturer until after absolute discharge by Ontario Review Board — Motion judge finding that action not out of time — Motion judge applied correct legal test but misapprehended evidence — Appropriate case for Court of Appeal to exercise its fact-finding powers and to grant summary judgment dismissing action as statute-barred.

Courts — Jurisdiction — Court of Appeal — Plaintiff found not criminally responsible for killing his son — Plaintiff having psychotic delusions while taking anti-depressant manufactured by defendant — Motion judge finding that plaintiff lacked capacity to sue manufacturer until after absolute discharge by Ontario Review Board — Motion judge finding that action not out of time — Motion judge applied correct legal test but misapprehended evidence — Appropriate case for Court of Appeal to exercise its fact-finding powers and to grant summary judgment dismissing action as statute-barred.

Limitations — Persons under disability — Plaintiff found not criminally responsible for killing his son — Plaintiff having psychotic delusions while taking anti-depressant manufactured by defendant — Plaintiff under jurisdiction of Ontario Review Board for four years before being absolutely discharged — Plaintiff commencing action against defendant after being discharged — Motion judge finding that action not out of time as plaintiff lacked capacity before obtaining discharge — Motion judge applied correct legal test but misapprehended evidence showing that plaintiff conducted legal and business affairs while under jurisdiction of Review Board — Action dismissed — Limitation of Actions Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 7(1)(a), 7(2).

In July 2003, the plaintiff was prescribed an anti-depressant manufactured by the defendant. By March 2004 he had stopped taking the drug. In July 2004, without consulting a physician, he started taking it again. A week later, he increased his daily dosage beyond the recommended amount. Within two weeks of increasing the dosage he began to have psychotic delusions that his 11-year-old son was terminally ill. The son had epilepsy but was otherwise healthy. Shortly thereafter he strangled his son to death. The plaintiff was charged with murder. At his trial he did not advance a defence based on the theory that the drug caused his psychosis. In September 2005 he was found to be not criminally responsible on account of mental disorder. In December 2009, after his fifth hearing before the Ontario Review Board, he was granted an absolute discharge with the board unanimously concluding that he no longer posed a significant threat to public safety. In the meantime, he had published a website about the dangers of the drug and asked the defendant to sponsor it. He also published a pamphlet about the drug, gave media interviews, retained a divorce lawyer, met with a lawyer in the United States to explore the possibility of suing the defendant, and in [page610] May 2007 was confirmed by a psychiatrist to be mentally competent and able to understand and sign legal documents in connection with the sale of his house. In October 2009, he received a DNA report indicating that he was an "extensive metaboliser" of medications and that the drug had caused his psychosis. In October 2011, believing that the report constituted discovery of a claim and that the limitation period was running out, he prepared and issued a statement of claim against the defendant. The pleading was amended after he retained counsel. The defendant filed a statement of defence denying liability, and subsequently moved for summary judgment to dismiss the action as statute-barred. The motion judge found that the plaintiff had discovered his claim long before October 2009, but that based on s. 7(1)(a) of the Limitations Act, 2002 the two-year limitation period did not run during any time when the plaintiff had proved that he was incapable of commencing a proceeding because of his psychological condition. The judge found that the plaintiff lacked capacity until his absolute discharge by the Ontario Review Board in December 2009. The summary judgment motion was dismissed. The defendant appealed.

Held, the appeal should be allowed.

The motion judge did not apply the wrong legal test under s. 7(1)(a). The judge had referred to "psychological strength" to undertake the initiation of a lawsuit. The expression was potentially confusing because it was apt to be misinterpreted as suggesting a subjective standard for capacity. The expression was also unhelpful because a finding of a lack of psychological strength was a conclusion, but not in itself a reason for finding incapacity. Thus, the expression was best avoided. However, the judge mentioned it only once and it was to make the uncontroversial point that a person may display many indicators of cognitive capacity, yet still lack the capacity to commence a proceeding in respect of the claim because of their psychological condition.

The motion judge did not reverse the onus for proving capacity under s. 7(2) of the Limitations Act. Section 7(2) provided for a presumption of capacity at all times unless the contrary is proved. The judge had cited a civil sexual assault case. The defendant argued that based on that case, the judge found that the plaintiff was incapable of commencing his claim until he obtained an absolute discharge from the Ontario Review Board and that the defendant was required to prove the contrary. However, the judge cited the case for the proposition that a plaintiff's discovery of a cause of action and the legal capacity to sue should not be conflated, and for the proposition that the capacity to start an action stands apart from the capacity to deal with other daily stressful circumstances. Citing the case did not constitute a reversal of the burden of proof.

The motion judge did materially misapprehend the evidence. He stated that he would have no trouble in finding that the plaintiff, prior to his absolute discharge, would not have been able to understand the decisions he had to make or to appreciate the consequences of those choices. However, the judge did not refer to any specific evidence to support those findings. Nor were the findings supported by the expert evidence. The misapprehension was obvious and essential to the conclusion that the plaintiff was incapable of suing the defendant until after his absolute discharge, with the result that the decision was set aside.

It was an appropriate case for the Court of Appeal to exercise its fact-finding powers. The appeal did not raise questions of credibility, the record was complete for the purpose of deciding whether to grant summary judgment, the parties did not materially dispute the facts, neither party asked for redetermination by the [page611] Superior Court, and the matter had already been before the courts for almost a decade.

It was an appropriate case to grant summary judgment. Prior to his absolute discharge, the plaintiff had the ability to know or understand the minimum choices or the decisions required to pursue a claim. There was evidence that he understood the litigation process and that had the capacity to review and sign legal documents, to manage his financial and business affairs, and to reach out and to speak to others about mental illness. He had an appreciation of the consequences and effects of his choices or decisions in that he weighed the effects of litigation on himself and his family and he waited until he thought he had enough information on causation. The expert evidence established that he appreciated the nature of the proceedings. He showed an ability to choose and keep counsel, having been represented by counsel at his criminal trial and before the Ontario Review Board and retaining a divorce lawyer and consulting with an American lawyer. He had the ability to represent himself in drafting his own statement of claim, creating a website, and giving media interviews. He had an ability to distinguish between relevant and irrelevant issues. Although he was mistaken about the law of limitations, that mistake did not suggest that he was incapable of suing the defendant because of a psychological condition. There was no clear and unequivocal evidence that the plaintiff's doctors advised him not to sue until after his absolute discharge. Although being under the jurisdiction of the Ontario Review Board was stressful for the plaintiff and his family, the board's final ruling did not cause the immediate return of the plaintiff's psychological capacity to sue. There were many objective indications that the plaintiff had the capacity to sue the defendant long before the absolute discharge.

Hengeveld v. Ontario (Minister of Transportation), [2017] O.J. No. 5596, 2017 ONSC 6300 (S.C.J.); Huang v. Pan, [2017] O.J. No. 2265, 2017 ONCA 268, 30 E.T.R. (4th) 19, 16 C.P.C. (8th) 59, 278 A.C.W.S. (3d) 13 (C.A.), quashing appeal, [2016] O.J. No. 5238, 2016 ONSC 6306, 24 E.T.R. (4th) 285, 272 A.C.W.S. (3d) 288, 100 C.P.C. (7th) 183 (S.C.J.) [Leave to appeal refused [2017] O.J. No. 3199, 2017 ONSC 3826 (S.C.J.)], apld

Calvert (Litigation guardian of) v. Calvert (1998), 1998 CanLII 3001 (ON CA), 37 O.R. (3d) 221, [1998] O.J. No. 505, 36 R.F.L. (4th) 169, 77 A.C.W.S. (3d) 582, 106 O.A.C. 299 (C.A.), affg (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281, [1997] O.J. No. 553, 26 O.T.C. 81, 27 R.F.L. (4th) 394, 69 A.C.W.S. (3d) 125 (Gen. Div.) [Leave to appeal to S.C.C. refused [1998] S.C.C.A. No. 161]; C. (A.) v. Joyce, [2017] O.J. No. 281, 2017 ONCA 49 (C.A.), varg C. (A.) v. Joyce (2016), 130 O.R. (3d) 114, [2016] O.J. No. 1627, 2016 ONSC 2164 (S.C.J.), consd

Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 366 D.L.R. (4th) 641, 453 N.R. 51, J.E. 2014-162, 314 O.A.C. 1, 21 B.L.R. (5th) 248, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 95 E.T.R. (3d) 1, 37 R.P.R. (5th) 1, EYB 2014-231951, 2014EXP-319, folld

Other cases referred to

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Leather, [1965] 2 All E.R. 441, [1965] 2 Q.B. 367, [1965] 2 W.L.R. 1318 (C.A.); Klimek v. Klos, [2013] O.J. No. 3740 (S.C.J.); Landrie v. Congregation of the Most Holy Redeemer (2014), 120 O.R. (3d) 768, [2014] O.J. No. 3132, 2014 ONSC 4008 (S.C.J.); Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, 264 D.L.R. (4th) 10, 346 N.R. 1, J.E. 2006-620, 222 B.C.A.C. 1, 46 Admin. L.R. (4th) 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, 68 W.C.B. (2d) 722, EYB 2006-102437, 2006 CCAN para. 10,018; McAnuff (Re) (2016), 130 O.R. (3d) 440, [2016] O.J. No. 2031, 2016 ONCA 280, 348 O.A.C. 20, 130 W.C.B. (2d) 59 (C.A.); Mongeon v. Sammon (2012), 108 O.R. (3d) 789, [2012] O.J. No. 255, 2012 ONSC 409 (S.C.J.); Moore v. Apollo Health & Beauty Care, [2017] O.J. No. 2381, 2017 ONCA 383, [2017] CLLC para. 210-048, 279 A.C.W.S. (3d) 90 (C.A.); Murphy v. Welsh (1993), 1993 CanLII 59 (SCC), 14 O.R. 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Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165, 132 A.C.W.S. (3d) 1046 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291]; Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381, 1999 CCAN para. 10,036; Winmill v. Woodstock (City) Police Services Board (2017), 138 O.R. (3d) 641, [2017] O.J. No. 6406, 2017 ONCA 962, 16 C.P.C. (8th) 288, 46 C.C.L.T. (4th) 69, 286 A.C.W.S. (3d) 555 (C.A.), revg on other grounds [2017] O.J. No. 2013, 2017 ONSC 2528 (S.C.J.); Winter v. Sherman Estate, [2018] O.J. No. 2068, 2018 ONCA 379 (C.A.) [Leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 438]

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 134 [as am.], (1), (4)(a)

Criminal Code, R.S.C. 1985, c. C-46, ss. 672.52(1), 672.54 [as am.], (a), (b), (c), 672.81 [as am.]

Limitations Act, R.S.O. 1990, c. L.15 [rep.], s. 47

Real Property Limitations Act, R.S.O. 1990, c. L.15

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 4, 7, (1)(a), (2), 10(3) [rep.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04(2), (a), (b), (2.1), (2.2)

Authorities referred to

Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

Mew, Graeme, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016)

Ministry of the Attorney General, Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: March 1991)

Perell, Paul M., and John W. Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Markham, Ont.: LexisNexis, 2014) [page614]

APPEAL by the defendant from the order of Lederer J., [2019] O.J. No. 2135, 2019 ONSC 2037 (S.C.J.) dismissing a motion for summary judgment.

Randy Sutton, Kate Findlay and Justine Smith, for appellant.

Michael F. Smith and James Yap, for respondent.

The judgment of the court was delivered by

JAMAL J.A.: —

A. Overview

[1] This appeal concerns the proper interpretation of s. 7(1) (a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B ("Act"). This provision provides that the basic two-year limitation period in s. 4 of the Act 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". Section 7(2) adds that "[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". What must a person with a claim show to prove that they were "incapable of commencing a proceeding in respect of the claim" because of their "psychological condition" under s. 7(1) (a), to rebut the presumption of capacity and stop the running of the limitation period? That is the central issue raised in this appeal.

[2] This is a tragic case. On July 31, 2004, the respondent, Mr. David Carmichael, strangled to death his 11-year-old son, Ian. At the time, Mr. Carmichael was suffering from mental illness and psychotic delusions. He was also taking the antidepressant drug, Paxil, manufactured by the appellant, GlaxoSmithKline Inc. ("GSK").

[3] Mr. Carmichael was charged with murder but was found to be not criminally responsible on account of mental disorder ("NCRMD"), and thus came under the jurisdiction of the Ontario Review Board ("Board"). He received in-patient treatment at a psychiatric hospital and in late 2007 started living in the community. He was granted an absolute discharge on December 2, 2009.

[4] Between July 31, 2004, when Mr. Carmichael killed his son, and December 2, 2009, when he received an absolute discharge, Mr. Carmichael worked with and instructed several lawyers, including his criminal defence counsel, his counsel before the Board and his divorce lawyer. He also travelled to Texas to meet with a U.S. lawyer with whom he discussed the possibility of suing GSK. He published a website and a booklet describing how he believed Paxil had caused his psychosis, gave media interviews to newspapers and a national [page615] television program and approached GSK about sponsoring or buying his website.

[5] On October 5, 2011, Mr. Carmichael sued GSK for damages. The action was commenced more than seven years after Mr. Carmichael killed his son and nearly two years after he received an absolute discharge.

[6] GSK moved for summary judgment to dismiss the action as statute-barred. The motion judge dismissed the motion, holding that that the two-year limitation period under s. 4 did not begin to run until Mr. Carmichael received an absolute discharge on December 2, 2009. In his view, Mr. Carmichael had proved that he was "incapable of commencing a proceeding in respect of the claim" because of his "psychological condition" under s. 7(1)(a), and had thus rebutted the presumption of capacity under s. 7(2).

[7] GSK now appeals.

[8] For the reasons that follow, I would allow the appeal. I would grant GSK's motion for summary judgment and dismiss the action as statute-barred.

B. Relevant legislation

[9] The key provisions in this appeal are ss. 4 and 7 of the Act.

[10] Section 4 establishes a basic two-year limitation period that begins to run once a claim is discovered:

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.

[11] Section 7(1)(a) suspends the basic limitation period 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, while s. 7(2) provides that 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. Section 7 provides:

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.

(3) If the running of a limitation period is postponed or suspended under this section and the period has less than six months to run when the postponement or suspension ends, the period is extended to include the day that is six months after the day on which the postponement or suspension ends. [page616]

C. Background Facts

[12] The parties filed a joint chronology of major events from 2003 to 2011. While the parties do not materially disagree about the background facts, they do disagree about the legal significance of certain facts and whether these facts proved that, until December 2, 2009, Mr. Carmichael was incapable of commencing a proceeding in respect of his claim because of his psychological condition.

(a) Mr. Carmichael starts and then stops taking Paxil

[13] In July 2003, Mr. Carmichael was suffering from personal and financial stress and was given some Paxil tablets by his twin brother, who was taking Paxil for depression. Later that month, Mr. Carmichael was prescribed 40 mg of Paxil per day for depression by his physician.

[14] In early 2004, Mr. Carmichael began to wean himself off Paxil, and in March 2004, he stopped taking it. At that time, he did some Internet research and read articles suggesting that potential side-effects of Paxil included violence and the desire to commit suicide or kill someone. He also read about a U.S. lawsuit against GSK's predecessor company alleging that someone had killed himself and three others while taking Paxil.

(b) GSK and Health Canada issue warnings about Paxil

[15] In May 2004, GSK issued a warning to the medical community that some Paxil users reported "severe agitation-type adverse events coupled with self-harm or harm to others". GSK recommended "[r]igorous clinical monitoring" of patients for "agitation-type emotional and behavioural changes".

[16] In June 2004, Health Canada issued an advisory to Canadians stating that it had introduced stronger warnings on newer antidepressants, including Paxil. It warned that patients "may experience behavioural changes and/or emotional changes that may put them at increased risk of self-harm or harm to others".

(c) Mr. Carmichael starts taking Paxil again and increases his dosage without medical advice

[17] On July 8, 2004, without consulting a physician, Mr. Carmichael started taking 40 mg of Paxil again. About a week later -- again, without consulting a physician -- he increased his dosage to 60 mg daily, which was beyond the recommended dosage for depression. [page617]

(d) During a psychotic episode, Mr. Carmichael kills his son

[18] Within two weeks of increasing the dosage, Mr. Carmichael began having psychotic delusions that his 11-year-old son, Ian, had a malignant brain tumour and was terminally ill. In fact, although Ian had epilepsy, he was otherwise healthy. Mr. Carmichael also had delusions that Ian would kill Mr. Carmichael's daughter and cause his wife to have a nervous breakdown.

[19] Mr. Carmichael decided that the only way to end Ian's perceived suffering and to protect his wife and daughter was to kill him. He first planned to drown Ian and himself, but did not do so. Then, on July 30, 2004, he took Ian to a hotel in London, Ontario, on the pretext of taking him to a BMX bike-riding track. That night, Mr. Carmichael gave Ian an overdose of sleeping medication and strangled him.

[20] The next morning, Mr. Carmichael called the hotel's front desk and asked the operator to call the police. He told the 911 operator that he had killed his son and that he was taking Paxil. He was arrested and charged with first degree murder. When he was interviewed by the police, he raised the possibility that Paxil may have been involved in him killing his son.

(e) At his criminal trial, Mr. Carmichael does not suggest that Paxil caused his psychosis

[21] In August 2004, criminal defence counsel was retained to represent Mr. Carmichael. Mr. Carmichael and his counsel explored a defence based on the theory that Paxil caused his psychosis, and in February 2005, a psychiatrist told Mr. Carmichael that he supported this theory. Even so, Mr. Carmichael and his defence team decided not to advance this defence.

(f) Mr. Carmichael is found not criminally responsible on account of mental disorder

[22] On September 30, 2005, Mr. Carmichael was found to be NCRMD by Rady J. of the Ontario Superior Court of Justice. She found that, on the day Mr. Carmichael killed his son, he "was suffering from a severe depressive illness with associated delusional thinking that deprived him of the capacity to know that his actions were morally wrong". She found "no reasonable alternative explanation for this terrible event except the devastating effects of mental illness". She ordered him detained in custody at the Brockville Mental Health Centre ("Hospital") for up to 90 days under s. 672.54(c) of the Criminal Code, R.S.C. 1985, c. C-46, and transmitted a copy of the record of the disposition hearing before her to the Board under s. 672.52(1) of the Criminal Code. [page618]

(g) The Ontario Review Board

[23] Because the Board's proceedings figure prominently in this case, it is worth saying a few words about its mandate.

[24] The Board's mandate is to determine whether an NCRMD accused poses a "significant threat to the safety of the public": s. 672.54(a). A "significant threat to the safety of the public" means "a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying" and "must be criminal in nature": Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 62. The Board must consider both the likelihood of a risk materializing and the seriousness of the harm that might occur: Kassa (Re), [2019] O.J. No. 2007, 2019 ONCA 313 (C.A.), at para. 33.

[25] If the Board concludes that the NCRMD accused does not pose a significant threat to public safety, then he or she must be discharged absolutely: s. 672.54(a).

[26] But if the Board finds that the significant threat threshold is met, it must order the NCRMD accused to be either discharged or detained in custody in a hospital, in either case subject to conditions as it considers appropriate: ss. 672.54(b) and (c); R. v. Lamanna, [2009] O.J. No. 3380, 2009 ONCA 612, 252 O.A.C. 280 (C.A.), at para. 7. The Board must make a disposition that is "necessary and appropriate in the circumstances" (s. 672.54), which has been interpreted as meaning the "least onerous and least restrictive" disposition regarding the NCRMD accused's liberty interests that is consistent with public safety and their mental condition, other needs, and eventual reintegration into society: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, at para. 19; McAnuff (Re) (2016), 130 O.R. (3d) 440, [2016] O.J. No. 2031, 2016 ONCA 280 (C.A.), at para. 22.

[27] The Board must hold a hearing not later than 12 months after making a disposition and every 12 months thereafter as long as the disposition remains in force, to review any disposition that it has made for an NCRMD accused, other than an absolute discharge: s. 672.81.

(h) Mr. Carmichael's first hearing before the Board

[28] Following Mr. Carmichael's first hearing before the Board, held in November 2005, the Board accepted the Hospital's recommendation that while Mr. Carmichael was "not currently reporting or demonstrating any active symptoms of mental illness", he might suffer another psychotic episode, and therefore posed a [page619] significant threat to public safety. The Board ordered him detained at the Hospital, subject to conditions permitting him to enter the community once a month under approved supervision.

(i) Mr. Carmichael publishes a website, gives media interviews and asks GSK to sponsor his website

[29] In June 2006, Mr. Carmichael published a website detailing how he believed that Paxil triggered his psychosis.

[30] That summer, Mr. Carmichael gave media interviews about his offence to The London Free Press, the Ottawa Sun and the Ottawa Citizen, contrary to the advice of his treating psychiatrists.

[31] In August 2006, Mr. Carmichael left a voicemail for GSK about "a potential opportunity to collaborate in a public education initiative". GSK did not respond. A few days later, he left another voicemail for GSK, which he later described as follows:

I proposed that GlaxoSmithKline become the exclusive sponsor of a website that I was developing for people suffering from depression (depressionsufferers.com). I also indicated that if they become the exclusive sponsor that I would work with them on the messaging on my website (davidcarmichael.com) and that my wife, daughter and I would not explore the possibility of pursuing any legal action against GlaxoSmithKline.

(Emphasis added)

[32] In late August 2006, GSK advised the Hospital that Mr. Carmichael had left a threatening voicemail trying to extort money and wrote to Mr. Carmichael to reject his proposal. In early September 2006, Mr. Carmichael responded to GSK in writing and again proposed that it sponsor his website. He followed up a couple of weeks later by leaving a voicemail for GSK and asked for a meeting. GSK did not respond.

[33] When Mr. Carmichael's psychiatrists heard that Mr. Carmichael had left a voicemail for GSK, they told him that such a voicemail could easily be construed as an attempt to extort money. They warned him not to act in this way in the future but rather to work through his lawyers.

(j) Mr. Carmichael's second hearing before the Board

[34] Following Mr. Carmichael's second hearing before the Board, held in November 2006, the Board confirmed that Mr. Carmichael continued to pose a significant risk to public safety, though he was now permitted to reside in the community in accommodation approved by the Hospital.

[35] The Board noted that the opinion of Mr. Carmichael's psychiatrist was that "[t]here are currently no signs of any symptoms of his mental illness", but his condition "could still deteriorate if he were subject to too much stress", and this "could [page620] lead to further suicidal ideas and could cause a relapse". It also noted that while Mr. Carmichael had reconciled with his wife, from whom he had separated after their son's death, dealing with his marriage would be a source of stress.

[36] The Board also noted that Mr. Carmichael and his wife had

considered the possibility of taking legal action against the manufacturers of one the medications, which they felt had caused a worsening of his depression and had eventually resulted in the death of their son. This plan now appears to have been put aside.

(k) Mr. Carmichael retains a divorce lawyer

[37] In February 2007, Mr. Carmichael advised the Hospital that he had retained a lawyer to help him divorce from his wife. His psychiatrist noted that Mr. Carmichael was handling these stressful events reasonably well: "he is not showing any florid delusions or hallucinations, he is not manic, he is not depressed and he seems to be dealing reasonably well with the stress of going through his divorce".

[38] By late March 2007, Mr. Carmichael and his wife had reconciled. His psychiatrist noted that "he has abandoned the idea of divorcing from his wife on the advice of his lawyer . . . and his wife and himself and daughter have actually met and have got into some reconciliation meetings".

(l) Mr. Carmichael participates in a CTV W5 episode

[39] In April 2007, CTV's investigative journalism show W5 aired a segment entitled "Over the Edge", in which Mr. Carmichael was interviewed about the events leading to his psychosis, how he killed his son and his criminal trial. It also contained brief interviews of two psychiatrists, one of whom, Dr. Bradford, had prepared an expert report for Mr. Carmichael's trial on which Rady J. had relied in finding him NCRMD. One psychiatrist believed that Mr. Carmichael's psychosis was "directly related" to Paxil, while Dr. Bradford was not convinced of this and highlighted that drugs like Paxil had helped millions of people. A CTV journalist noted that Mr. Carmichael "has thought about joining the thousands of others who are suing the big drug companies", but for now was driven to gain greater freedom and to be a father again to his daughter.

(m) Mr. Carmichael is confirmed to be mentally competent

[40] In late May 2007, in connection with the sale of Mr. Carmichael's house, his psychiatrist confirmed that "David Carmichael, a patient in the Forensic Ward at Brockville Mental Health [page621] Centre, is mentally competent and able to understand and sign legal documents".

(n) Mr. Carmichael's third hearing before the Board

[41] Following Mr. Carmichael's third hearing before the Board, held in November 2007, the Board concluded that although Mr. Carmichael continued to present a significant risk to public safety, it was now appropriate to grant him a conditional discharge. The Board imposed as a condition that he continue to live in Brockville and report to the Hospital at least once a month.

[42] The Board noted that Mr. Carmichael's wife, daughter and mother had recently moved to Brockville and he was living with them. The Hospital's evidence was that his family reintegration was "proceeding cautiously", and that although he was compliant with his medication, "the risk of relapse is real". The Board found that Mr. Carmichael would continue to face stress in re-establishing his business as a fitness consultant, finding employment, and reconciling with his family.

(o) Mr. Carmichael travels to Texas to meet with a U.S. lawyer about suing GSK

[43] In March 2008, Mr. Carmichael travelled to Texas to meet with a U.S. lawyer, Mr. Andy Vickery, about potentially suing GSK. Mr. Vickery had successfully sued GSK regarding Paxil in the lawsuit that Mr. Carmichael had read about in March 2004 when he was researching Paxil.

[44] Mr. Carmichael explained during his examination for discovery that Mr. Vickery "was looking at an international class action at that point". Among other things, they discussed the statute of limitations and the need for an expert report to prove a causal link between Paxil and Mr. Carmichael's psychosis.

[45] On Mr. Carmichael's return to Canada, he did not consult with a Canadian lawyer or immediately try to sue. Mr. Carmichael explained in his examination for discovery: "I didn't think I had the merit for a lawsuit. I didn't have any evidence. And in dealing with GlaxoSmithKline, they adamantly denied there was any causal link. You know, so that's . . . at that point it [sic] time it would be impossible."

(p) Mr. Carmichael's fourth hearing before the Board

[46] At Mr. Carmichael's fourth hearing before the Board, held in November 2008, the Hospital now recommended an absolute discharge. Even so, the Board, by a majority, maintained a conditional discharge. [page622]

[47] The Hospital's evidence was that Mr. Carmichael's mental state was stable and that he no longer posed a significant threat to public safety. He had been living in the community with his wife and daughter since October 2007. He was working as a fitness consultant. He showed no symptoms of any anxiety disorder or mood issues and his family reunification was going well. But the Hospital also highlighted that Mr. Carmichael could still relapse into depression while being medication compliant and that the incidence of relapse and of suicide was higher because of Mr. Carmichael's family history of depression.

[48] The majority found that there was insufficient history and evidence to predict Mr. Carmichael's conduct if he were to decompensate. It was also concerned that no evidence showed that his wife and daughter were more knowledgeable about the signs of decompensation and willing to engage with mental health professionals if it occurred.

[49] One Board member, however, concluded that an absolute discharge was now appropriate. He noted that Mr. Carmichael had a supportive family and had reintegrated successfully into the Brockville community, that according to the Hospital his depression was "in complete remission", and that he showed no evidence of depression or any other mental disorder during his testimony, despite having had a long and stressful hearing before the Board. The minority member was satisfied that because of the catastrophic effect of the index offence and Mr. Carmichael's expressed remorse, all concerned would react differently than had been the case before the index offence and the development of psychotic symptoms would be avoided.

(q) Mr. Carmichael publishes "Killer Side Effects"

[50] In March 2009, Mr. Carmichael published a 36-page booklet entitled "Killer Side Effects: What GlaxoSmithKline Does Not Seem to Want Anyone to Know About Paxil". The booklet described why Mr. Carmichael believed that Paxil triggered his psychosis and led him to kill his son; included media articles on Paxil and the dangers of certain antidepressant drugs; described Mr. Carmichael's website in which he sought to educate the public on Paxil and depression; and included his communications with GSK, in which in 2006 he had asked GSK to sponsor his website and in 2008 had offered to sell it to them.

(r) Mr. Carmichael receives a DNA report

[51] In 2009, Dr. Yolande Lucire, a forensic psychiatrist in Australia, contacted Mr. Carmichael and asked him to participate in a research project dealing with antidepressants and genetics. Mr. [page623] Carmichael agreed and provided a sample of his DNA. The results, which he received in October 2009, noted that Mr. Carmichael is an "extensive metaboliser" of medications. Mr. Carmichael's evidence was that Dr. Lucire told him that Paxil had caused his psychosis. Mr. Carmichael concluded that his genetic make-up made him particularly susceptible to the alleged side-effects of Paxil. Mr. Carmichael testified on cross-examination: "I discovered my claim with the DNA test from Dr. Lucire. That's when I felt I discovered my claim."

(s) Mr. Carmichael's fifth and final hearing before the Board

[52] Following Mr. Carmichael's fifth and final hearing before the Board, held on December 2, 2009, the Board unanimously concluded that he no longer posed a significant threat to public safety and granted him an absolute discharge. The Board found that Mr. Carmichael "presented as a stable individual whose mental illness has remained in remission for a considerable period of time". The Hospital's evidence, summarized in its report dated September 28, 2009, was that Mr. Carmichael was in "full remission from his diagnosed illness of major depressive disorder", that there was a "low probability of reoffence" and that there appeared to be "no deterioration in Mr. Carmichael's mental status, arising from the stressors of day to day living". The Board noted that the Hospital was satisfied that Mr. Carmichael would continue to take his medication, that he would seek help as required on an ongoing basis, and that he was supported by his wife and daughter.

(t) Mr. Carmichael sues GSK

[53] On October 5, 2011, Mr. Carmichael, unaided by counsel, issued a statement of claim against GSK. He later amended it after retaining counsel, and claimed over $11 million in general damages, $1 million in aggravated damages, and $10 million in punitive or exemplary damages. The claim alleged that Paxil induced the psychosis that caused Mr. Carmichael to kill his son. Among other things, it claimed that GSK was negligent in the manufacturing and marketing of Paxil and that it failed to adequately warn Mr. Carmichael and other consumers of the drug's dangers.

[54] Mr. Carmichael explained on cross-examination that he prepared the claim himself "within literally less than three days" in October 2011. He did so then because he believed that the limitation period had begun to run when he received Dr. Lucire's report: [page624]

And that's, to me, when I felt the statute of limitations period was running out. It was two years from one of the dates on that report that I got, the actual pharmacogenetic DNA results and I filed it within that two-year window. I knew I had no choice. I couldn't delay it any further.

(u) GSK defends the action and moves for summary judgment

[55] In April 2012, GSK filed a statement of defence. It denied liability.

[56] After discoveries, GSK moved for summary judgment because the action was statute-barred. GSK's position was that Mr. Carmichael commenced the proceeding more than two years after the day on which he discovered his claim against GSK. Cross-examinations were held on affidavits filed on the motion, including from Mr. Carmichael, his wife, daughter and two experts.

[57] In his affidavit, Mr. Carmichael stated that "[d]uring the entire period of my pre-trial detention I was psychologically overwhelmed and incapacitated by depression, my guilt and grief and the trauma of what I had done". He stated that he continued to experience "incapacitating psychological problems" until his absolute discharge on December 2, 2009.

D. The Expert Evidence on the Summary Judgment Motion

[58] Mr. Carmichael and GSK each filed contending expert reports about whether Mr. Carmichael was incapable of commencing his claim against GSK until December 2, 2009, because of his psychological condition.

(a) Dr. Stephen Fleming

[59] Mr. Carmichael's expert, Dr. Stephen Fleming, is a certified psychologist licensed to practise in Ontario, and has a clinical psychology practice with offices in Brampton and Mississauga. Since 2014, he has been Emeritus Professor of Psychology at the Faculty of Health at York University. He has co-authored a book on parenting after the death of a child and has published extensively in peer-reviewed journals on grief and trauma following death. He was provided with Mr. Carmichael's medical and other records and met with him for 8.5 hours over three meetings in March 2018.

[60] Dr. Fleming summarized his opinion as follows:

In my opinion David was incapable of commencing a proceeding in respect of his claim because of his psychological condition. A number of factors contributed to David's inability to initiate the process of launching a civil suit against GSK until his absolute discharge in December 2009. To fully appreciate his psychological state during this time, one must consider the complexity of David's response to the death of his son (depression, complicated grief, and trauma), the profound impact of Ian's death on the Carmichaels individually [page625] and collectively, the failure to receive on-going psychotherapy, and his feelings of vulnerability until he received an absolute discharge.

[61] Dr. Fleming saw "no evidence that anyone considered the possibility that Ian's gruesome murder might have had a traumatic impact upon David". In his view, Mr. Carmichael "exhibited symptoms of [Post-Traumatic Stress Disorder] that went undetected and untreated". He also concluded that Mr. Carmichael showed a tendency to avoid reminders of his son's death, which in turn interfered with his grieving.

[62] Dr. Fleming believed that a "significant contributing factor to David's not pursuing legal action until December 2009 was that it was against medical advice". He noted that Mr. Carmichael's medical team repeatedly cautioned him "about the disastrous consequence that might befall him should he begin to feel overwhelmed".

[63] Dr. Fleming concluded that Mr. Carmichael faced a considerable psychological risk of a relapse if he began legal proceedings before he received an absolute discharge:

[T]he launching of legal proceedings prior to December 2009 would have placed David at considerable psychological risk. The trauma of Ian's death resulted in the forced surrendering of David's comforting illusions and assumptions that [sic] his sense of self (i.e., organizing principles and values that maintain self-esteem and shape the data of experience). His assumptive world, that set of assumptions or beliefs that secure and ground individuals and provide a sense of reality, purpose, and meaning, was sorely challenged if not destroyed by David killing his son. The fracturing of David's assumptive world resulted in substantial psychological upheaval and left him feeling fearful, insecure, and vulnerable. Launching legal proceedings prematurely would threaten the process of re-building shattered assumptions, finding meaning after Ian's death, and precipitate a relapse.

(b) Dr. Anthony Rothschild

[64] GSK's expert, Dr. Anthony J. Rothschild, is a professor of psychiatry at the University of Massachusetts Medical School and a former professor of psychiatry at Harvard Medical School. He has published extensively in peer-reviewed journals in the field of psychiatry and conducted research on psychiatric illness, including depression, psychotic depression, bipolar disorder, anxiety disorders and schizophrenia. Although he did not meet with Mr. Carmichael, he was given his medical records and other materials filed on the summary judgment motion.

[65] Dr. Rothschild summarized his opinion as follows:

[T]he contemporaneous medical records, Mr. Carmichael's discovery testimony and Mr. Carmichael's behaviours and actions clearly and consistently indicate that he was competent and capable of filing a claim in a legal matter [for] a number of years prior to October 5, 2009. [page626]

The health care professionals who evaluated Mr. Carmichael came to the conclusion in October 2005, well before October 5, 2009, that Mr. Carmichael was competent to handle his business affairs, medical treatment, and legal affairs. The opinion of Mr. Carmichael's multiple health care professionals did not change and was consistently documented in the contemporaneous medical records describing Mr. Carmichael's ongoing treatment between October 2005 and October 2009.

In addition, for several years prior to October 5, 2009, Mr. Carmichael conducted business and contractual matters such as selling his home, consulting and retaining a divorce lawyer, applying for jobs, purchasing a car, purchasing a boat, and pursuing and meeting with potential business contacts.

It is my opinion, based on my review of the medical records, the actions of Mr. Carmichael in his personal and professional life, and given the opinions of Mr. Carmichael's health care professionals between October 2005 and October 2009, that he did not suffer from a physical, mental or psychological condition that would have rendered him incapable so as to prevent him from commencing a claim in a legal matter.

I find no basis for the assertion made by Dr. Fleming, that Mr. Carmichael was incapable of filing an action over that period of time due to a physical, mental or psychological condition.

[66] Dr. Rothschild disagreed with Dr. Fleming's opinion that it was too traumatic for Mr. Carmichael to file a claim until December 2, 2009, because of the strong memories of his son's death:

I disagree with Dr. Fleming's opinion that Mr. Carmichael avoided filing a legal claim because the memories and emotions associated with trauma are so painful that people avoid stimuli associated with the traumatic event (pg. 12). There is an abundance of evidence (discussed above) that Mr. Carmichael did not exhibit any avoidance behaviour related to his son's death. He met with attorneys, had discussions with his healthcare professionals, created websites, met with one or more lawyers, gave interviews to the press, wrote a blog, and contacted GlaxoSmithKline -- repeatedly voicing and discussing both his belief that Paxil played a role in the homicide and possible legal actions against GSK.

[67] Dr. Rothschild also disagreed with Dr. Fleming's opinion that Mr. Carmichael received medical advice not to sue GSK:

Mr. Carmichael was encouraged to work with his lawyers and to learn more about Paxil by the staff at Brockville Psychiatric Hospital regarding his concerns that Paxil played a role in causing him to take his son's life.... Contrary to Dr. Fleming's opinion, while the staff at Brockville Psychiatric Hospital told Mr. Carmichael to be careful as his phone call to GSK could have been interpreted as an extortion attempt, they did not discourage him from contacting GSK but urged him to work through his lawyer regarding any communications with GSK instead.

E. The Motion Judge's Decision

[68] The motion judge dismissed GSK's motion for summary judgment: at para. 46. He concluded that Mr. Carmichael was [page627] incapable of commencing his claim against GSK because of his psychological condition before the Board granted him an absolute discharge on December 2, 2009: at para. 42.

[69] The motion judge found that Mr. Carmichael discovered his claim against GSK about Paxil's potential role in causing his psychosis "long before October 5, 2009 which was two years before the action began": at para. 17. The motion judge referred to Mr. Carmichael's discussions with the police when he was arrested, his discussions with his lawyers in preparing for trial, his comments about Paxil during his treatment, his Internet searches, personal writings and interviews, and his discussions with the U.S. lawyer: at para. 17. This finding is not challenged on appeal.

[70] The motion judge next considered whether the two-year limitation period in s. 4 did not run under ss. 7(1)(a) and (2) during any time when Mr. Carmichael had proved that he was incapable of commencing a proceeding in respect of his claim because of his psychological condition. He held, at para. 40, that the relevant factors for determining whether a person is capable of commencing an action were set out in Huang v. Pan, [2016] O.J. No. 5238, 2016 ONSC 6306, 100 C.P.C. (7th) 183 (S.C.J.), at para. 19, appeal quashed [2017] O.J. No. 2265, 2017 ONCA 268, 16 C.P.C. (8th) 59 (C.A.), leave to appeal refused [2017] O.J. No. 3199, 2017 ONSC 3826 (S.C.J.), and Hengeveld v. Ontario (Minister of Transportation), [2017] O.J. No. 5596, 2017 ONSC 6300 (S.C.J.), at para. 21 ("Huang/Hengeveld indicators of capacity"):

(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 proceeding;

(d) A person's ability to choose and keep counsel;

(e) A person's ability to represent himself 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.

[71] The motion judge rejected GSK's position that Mr. Carmichael met each of these indicators of capacity no later than 2005. In his view, GSK's position failed "to recognize the fundamental distinction between the cognitive ability to commence an action and the psychological strength required to actually undertake the initiation of a lawsuit": at para. 42. The motion judge found, at para. 42, that Mr. Carmichael had proved that he lacked each of [page628] the Huang/ Hengeveld indicators of capacity until his absolute discharge on December 2, 2009:

Understood from the perspective of the psychological burden being carried by David Carmichael, taking into account the evolution of his coming to terms with his role in the death of his son, particularly as interpreted by the treating professionals along the way, as assessed thereafter by Dr. Stephen Fleming, accounted for in the decisions of the Ontario Review Board and confirmed by his wife and daughter I am unable to take each of these factors as having been met prior to his absolute discharge. By way of example, I have no trouble in finding that David Carmichael would not have been able to understand the minimum choices or the decisions he would have been required to make, to appreciate the consequences of those choices, to fully understand the nature of the proceedings, to choose and keep counsel and to represent himself or distinguish between relevant and irrelevant issues.

F. The Grounds of Appeal

[72] GSK advances three main grounds of appeal.

[73] First, GSK submits that the motion judge erred in law by applying the wrong legal test under s. 7(1)(a) of the Act. While GSK accepts that the motion judge correctly identified the Huang/Hengeveld indicators of capacity, it contends that the motion judge erred by assessing those factors "through the lens of 'psychological strength'". GSK asserts that "psychological strength" is not mentioned in the Act and is too subjective as a yardstick for capacity. It claims that to permit a litigant to defer commencing a claim until they have the subjective psychological strength to do so could extend the limitation period indefinitely and would effectively reverse the onus of proving incapacity.

[74] Second, GSK submits that the motion judge erred in law by reversing the onus of proving incapacity. It asserts that the motion judge required GSK to prove Mr. Carmichael's capacity, even though s. 7(2) presumes capacity "unless the contrary is proved".

[75] Third, GSK submits that the motion judge misapprehended the evidence regarding capacity and that this misapprehension led to a palpable and overriding error in applying ss. 7(1) (a) and (2) of the Act to the evidence.

G. Analysis

[76] In what follows, I first address the proper interpretation of s. 7(1)(a) of the Act and then consider GSK's three grounds of appeal. As I will explain, I do not accept GSK's first two grounds of appeal but accept the third. I reach five conclusions:

(1) The motion judge did not apply the wrong legal test under s. 7(1)(a) of the Act; [page629]

(2) The motion judge did not reverse the onus for proving incapacity contrary to s. 7(2);

(3) The motion judge materially misapprehended the evidence of incapacity, which led him to make a palpable and overriding error in applying s. 7(1)(a) to the evidence;

(4) This is an appropriate case for the court to make a fresh assessment of the evidence and to substitute the decision that should have been made; and

(5) Mr. Carmichael did not prove that he was incapable of commencing his action against GSK until December 2, 2009 because of his psychological condition.

(a) The interpretation of [s. 7(1)](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html#sec7subsec1_smooth)(a) of the [Limitations Act](https://www.canlii.org/en/on/laws/stat/so-2002-c-24-sch-b/latest/so-2002-c-24-sch-b.html), 2002

(i) Introduction

[77] Section 7(1)(a) of the Act prevents the basic limitation period in s. 4 from running 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. This provision requires proof of two elements: (i) the person with the claim is "incapable of commencing a proceeding in respect of the claim"; and (ii) the reason that the person is incapable is "because of his or her physical, mental or psychological condition".

[78] Section 7(2) states that 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. This provision establishes a presumption of the person's capacity to commence a proceeding in respect of a claim and places the onus on the person claiming incapacity to prove the contrary. The burden of proof to rebut this presumption of capacity is on the civil standard of the balance of probabilities.

(ii) Purposive interpretation of limitation periods

[79] The interpretation of s. 7(1)(a) is guided by the modern rule of statutory interpretation, that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 CanLII 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21, citing Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87; and R. v. [page630] Penunsi, [2019] S.C.J. No. 39, 2019 SCC 39, 435 D.L.R. (4th) 65, at para. 36.

[80] Traditionally, limitation periods were seen as having three purposes, known as the certainty, evidentiary and diligence rationales: Novak v. Bond, 1999 CanLII 685 (SCC), [1999] 1 S.C.R. 808, [1999] S.C.J. No. 26, at paras. 64-67; Canadian Imperial Bank of Commerce v. Green (2015), 135 O.R. (3d) 334, [2015] 3 S.C.R. 801, [2015] S.C.J. No. 60, 2015 SCC 60, at para. 57; and Frohlick v. Pinkerton Canada Ltd. (2008), 88 O.R. (3d) 401, [2008] O.J. No. 17, 2008 ONCA 3 (C.A.), at para. 18. The certainty rationale seeks "to promote accuracy and certainty in the adjudication of claims"; the evidentiary rationale seeks "to provide fairness to persons who might be required to defend against claims based on stale evidence"; and the diligence rationale seeks "to prompt persons who might wish to commence claims to be diligent in pursuing them in a timely fashion": Green, at para. 57, citing Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Markham: LexisNexis, 2014), at p. 123.

[81] In Novak, McLachlin J. (as she then was) observed that the three traditional rationales for limitation periods generally reflect the interests of potential defendants, based on the idea that they should not have to respond to stale claims brought by persons who have not asserted their rights diligently: at para. 64. But as legislatures have modernized their limitations statutes, they have increasingly focussed on the need to treat plaintiffs fairly and to account for their interests as well: at paras. 65-66. Today, therefore, a limitations statute "must attempt to balance the interests of both sides": Murphy v. Welsh (1993), 1993 CanLII 59 (SCC), 14 O.R. (3d) 799, [1993] 2 S.C.R. 1069, [1993] S.C.J. No. 83, at p. 1080 S.C.R.; see also Frohlick, at para. 19; Joseph v. Paramount Canada's Wonderland (2008), 90 O.R. (3d) 401, [2008] O.J. No. 2339, 2008 ONCA 469 (C.A.), at para. 8.

[82] Ontario's comprehensive legislative reform of the law of limitations, which was passed in 2002 but only came into force in 2004, similarly sought to achieve a balance between the interests of defendants and plaintiffs. It is "aimed at creating a clear and cohesive scheme for addressing limitation issues, one that balances the plaintiff's right to sue with the defendant's need for certainty and finality": Canaccord Capital Corp. v. Roscoe (2013), 115 O.R. (3d) 641, [2013] O.J. No. 2643, 2013 ONCA 378 (C.A.), at para. 17.

[83] I turn now to consider the specific wording of s. 7(1) (a).

(iii) "Incapable"

[84] Although s. 7(1)(a) does not define "incapable", a person is generally said to be "incapable" if they lack physical or mental capabilities: Black's Law Dictionary, Bryan A. Garner, ed., 10th [page631] ed. (St. Paul, Minn.: Thomson Reuters, 2014) ("incapacity"). As noted by Tulloch J.A. for a five-judge panel of this court in Ohenhen (Re), [2018] O.J. No. 392, 2018 ONCA 65 (C.A.), at para. 81:

Generally, Ontario law provides that a person has the capacity to make a decision if they are able to understand the information that is relevant to making that decision and able to appreciate the reasonably foreseeable consequences of that decision or lack of decision: see e.g. Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6 (property decisions) and 45 (personal care decisions); Health Care Consent Act, [1996, S.O. 1996, c. 2, Sched. A] s. 4(1) (medical treatment); [R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82], at para. 22 (medical treatment).

[85] Capacity is linked to personal autonomy and a person's self-determination and ability to make important life choices. Because of the importance of these values, courts generally set a low threshold for determining capacity: Calvert (Litigation Guardian of) v. Calvert (1997), 1997 CanLII 12096 (ON SC), 32 O.R. (3d) 281, [1997] O.J. No. 553 (Gen. Div.), at p. 294 O.R., per Benotto J. (as she then was), affd (1998), 1998 CanLII 3001 (ON CA), 37 O.R. (3d) 221, [1998] O.J. No. 505 (C.A.), leave to appeal to S.C.C. refused [1998] S.C.C.A. 161; Ohenhen (Re), at para. 83.

[86] But the law also recognizes that a person's capacity can vary with the decision at issue. Thus, "[a] person can be capable of making a basic decision and not capable of making a complex decision": Calvert, at p. 293 O.R. As Tulloch J.A. stated in Ohenhen (Re), at para. 80: "a person may be capable of managing personal care, but not his or her finances. Or, a person may have the capacity to make a will for a simple estate, but not for a more complicated one."

[87] In this regard, I agree with the observation of Benotto J. (as she then was) in Calvert, that the capacity to instruct counsel is at the higher end of the competency hierarchy, at p. 294 O.R.:

There is a distinction between the decisions a person makes regarding personal matters such as where or with whom to live and decisions regarding financial matters. Financial matters require a higher level of understanding. The capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy. It has been said that the highest level of capacity is that required to make a will[.]

(Emphasis added)

(iv) . . . "of commencing a proceeding in respect of the claim"

[88] Because s. 7(1)(a) asks only about the person's capacity to commence a proceeding in respect of the claim at issue, the provision implicitly recognizes that capacity can vary for different decisions. This contrasts with s. 47 of the former Limitations Act, R.S.O. 1990, c. L.15 (as it appeared on December 31, 2003),¹ which required the person to prove a state of general incapacity, by showing that they were "a minor, mental defective, mental incompetent or of unsound mind". Section s. 7(1)(a) of the current Act is therefore more liberal and generous than s. 47 of the former [page632] Limitations Act on the nature and scope of the incapacity that will stop the running of a limitation period: see Landrie v. Congregation of the Most Holy Redeemer (2014), 120 O.R. (3d) 768, [2014] O.J. No. 3132, 2014 ONSC 4008 (S.C.J.), at para. 29; Graeme Mew, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016), at p. 206, at §6.19.

[89] By focussing only on the person's incapacity to pursue the particular claim at issue, s. 7(1)(a) seeks to promote fairness by reflecting a concern for the plaintiff's own circumstances, thereby respecting individual differences and providing individual justice: see Recommendations for a New Limitations Act: Report of the Limitations Act Consultation Group (Toronto: Ministry of the Attorney General, March 1991), at p. 29.

[90] What, then, must a person show to prove that they were incapable of commencing a proceeding in respect of the claim?

[91] It is useful to begin by considering some of the decisions a potential litigant must make before commencing a lawsuit. Often, they must obtain professional advice about whether they have a claim, the costs of proceeding, the potential for recovery and the potential exposure for costs if they lose. They must then make an informed judgment about whether the costs of proceeding, both personal and monetary, outweigh the benefits. These are complex decisions: see, e.g., Bisoukis v. Brampton (City) (1999), 1999 CanLII 3825 (ON CA), 46 O.R. (3d) 417, [1999] O.J. No. 4598 (C.A.), at para. 49, per Borins J.A., leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 52, 2000 CarswellOnt 3008 (discussing the test for capacity under s. 47 of the former Limitations Act).

[92] As a result, capacity must be assessed by considering the complex decisions involved in commencing a lawsuit. The court must ask whether a plaintiff had the capacity to make those decisions.

[93] This court listed some of the indicators for such capacity in Bannon v. Thunder Bay (City) (2000), 2000 CanLII 5708 (ON CA), 48 O.R. (3d) 1, [2000] O.J. No. 1368 (C.A.), [page633] at paras. 35-36, revd on other grounds [2002] 1 S.C.R. 716, [2002] S.C.J. No. 18, 2002 SCC 20, in the context of s. 47 of the former Limitations Act. There, Doherty J.A. included factors such as whether the person was capable of: (i) considering what steps should be taken to protect any claim they might have; (ii) making, or directing others to make, the appropriate inquiries to determine what steps, if any, to protect those interests; (iii) understanding any advice that might be received as a result of those inquiries; and (iv) effectively directing that procedural steps be taken following receipt of that advice. Doherty J.A. stated that a person would need to show they lacked one or more of these capacities to establish that they were of "unsound mind" under s. 47: at paras. 35-36. The Supreme Court allowed the appeal in Bannon because it concluded that this court was wrong to reverse the trial judge's factual findings, but did not address these indicators of capacity:(S.C.C.), supra. In brief reasons, Iacobucci J. noted that "'unsound mind' as provided for in s. 47 means in context lack of mental capacity from whatever source to perform the requisite steps" required by statute: at para. 1. He also observed that "the act of writing a letter may by itself be a simple one, but in this context it requires a consideration of many factors and a mental capacity to address and assess those": at para. 3.

[94] More recently, in Hengeveld, at para. 21, Hebner J. drew on Huang and other case law addressing when a person is under disability and requires a litigation guardian, and listed the following potential indicators of the capacity to commence a proceeding under s. 7(1)(a) of the Act:

(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 the relevant and irrelevant issues; and,

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

See Huang, at para. 19, citing C. (C.) v. Children's Aid Society of Toronto, [2007] O.J. No. 5613 (S.C.J.), at paras. 29-32; Calvert (Gen. Div.), at p. 298 O.R.; Kirby v. Leather, [1965] 2 All E.R. 441, [page634] [1965] 2 Q.B. 367 (C.A.), at p. 444 All E.R.; and Bilek v. Constitution Insurance, [1990] O.J. No. 3117, 49 C.P.C. (2d) 304 (Dis. Ct.).

[95] Before this court, GSK submitted that the Huang/ Hengeveld indicators are appropriate indicia of capacity under s. 7(1)(a). Mr. Carmichael does not contest this, as long as the indicators are applied in a way that distinguishes between the capacity to perform routine cognitive tasks and the capacity to commence a legal proceeding concerning a psychologically traumatizing incident. Mr. Carmichael says that the motion judge did so.

[96] 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.

(v) . . . "because of his or her physical, mental or psychological condition"

[97] Lastly, the person's incapacity must be "because of his or her physical, mental or psychological condition". None of these terms is defined in the Act.

[98] 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. See The Oxford English Dictionary Online ("physical", "mental", "psychological").

[99] As is evident from these definitions, in many cases there may be no clear demarcation between a psychological condition and a mental condition. Indeed, it could be said that a psychological condition is a particular type of mental condition, in that both conditions affect or arise in a person's mind. It would appear that the reason for listing the three separate conditions in s. 7(1)(a) was to allow for a liberal and generous interpretation of the types of conditions that would satisfy the plaintiff's burden to prove [page635] incapacity and stop the running of the limitation period, in order to treat the plaintiff fairly and account for their interests.

[100] It is also evident that a person could have incapacitating physical, mental, and psychological conditions simultaneously. For example, a person could be incapacitated by physical and mental conditions, such as bodily paralysis coupled with a traumatic brain injury; or by mental and psychological conditions, such as schizophrenia coupled with severe depression; or all three conditions could operate together.

[101] 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 lack of sophistication, education, or cultural differences: see Huang, at para. 18; Costantino v. Costantino, [2016] O.J. No. 5963, 2016 ONSC 7279 (S.C.J.), at para. 41; and Children's Aid Society of Toronto, at para. 25.

[102] 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".

(vi) ". . . during any time . . ."

[103] 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: see, e.g., Mongeon v. Sammon (2012), 108 O.R. (3d) 789, [2012] O.J. No. 255, 2012 ONSC 409 (S.C.J.), at para. 31.

(vii) Evidence

[104] 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: see, e.g., Deck International Inc. v. Manufacturers Life Insurance Co., [2012] O.J. No. 2155, 2012 ONCA 309 (C.A.), at para. 6; Winter v. Sherman Estate, [2018] O.J. No. 2068, 2018 ONCA 379 (C.A.), at para. 14, leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 438; Reid v. Crest Support Services (Meadowcrest) Inc., [2013] O.J. No. 4525, 2013 ONSC 6264 (S.C.J.), at para. 17; Klimek v. Klos, [2013] O.J. No. 3740 (S.C.J.), at para. 25; Hussaini v. Freedman, [2013] O.J. No. 912, 2013 ONSC 779 (S.C.J.), at para. 51; and Landrie, at para. 35.

[105] Other evidence may also be relevant, such as:

-- evidence from persons who know the plaintiff well, the appearance and demeanour of the plaintiff, testimony of [page636] the plaintiff, or the opinion of the plaintiff's own counsel: see, e.g., Costantino v. Costantino, supra, at para. 58; Huang, at para. 20; and Children's Aid Society of Toronto, at para. 34;

-- the plaintiff's ability to commence other civil proceedings (see, e.g., Asagwara v. Money Mart, [2014] O.J. No. 5805, 2014 ONSC 6974 (S.C.J.), at para. 72; Kim v. Manufacturers Life Insurance Co. (c.o.b. Manulife Financial), [2014] O.J. No. 853, 2014 ONSC 1205 (S.C.J.), at para. 55) or to defend criminal proceedings (see, e.g., Winmill v. Woodstock (City) Police Services Board, [2017] O.J. No. 2013, 2017 ONSC 2528 (S.C.J.), at para. 32, revd on other grounds (2017), 138 O.R. (3d) 641, [2017] O.J. No. 6406, 2017 ONCA 962 (C.A.); Cooper v. Comer, [2017] O.J. No. 3539, 2017 ONSC 4142 (S.C.J.), at para. 57); and

-- other indicators of capacity, such as the potential litigant's ability to travel, instruct counsel, swear affidavits and make decisions affecting legal rights, if they bear on the capacity to commence a proceeding in respect of the claim: see, e.g., Reid, at para. 17; Klimek, at paras. 24-25.

[106] Finally, just because a person can function on a day-to-day basis and make the decisions required in daily life does not necessarily mean they have the capacity to start an action in respect of a claim: see Bisoukis, at para. 48. On the other hand, just because a person has a mental illness does not necessarily mean that they are incapable of instructing a lawyer or commencing a proceeding: see Mew, at p. 205, at §6.17, citing Panciera v. Rokovetsky, [2009] M.J. No. 180, 2009 MBQB 129, 252 Man. R. (2d) 115 (Q.B.), at para. 20; Evans v. Evans, [2017] O.J. No. 3716, 2017 ONSC 4345, 96 R.F.L. (7th) 300 (S.C.J.), at paras. 51-53; and Kim v. Manufacturers Life Insurance Co. (c.o.b. Manulife Financial), (S.C.J.), supra, at paras. 54-60, affd [2014] O.J. No. 4481, 2014 ONCA 658, 40 C.C.L.I. (5th) 12 (C.A.).

[107] I now turn to consider GSK's three grounds of appeal and the application of ss. 7(1)(a) and (2) to the evidence in this case.

(b) Application to this appeal

(1) Did the motion judge err in law by considering "psychological strength" under s. 7(1)(a)?

[108] GSK's first ground of appeal asserts that the motion judge erred in law by viewing the indicators for capacity through the subjective lens of "psychological strength", a factor not mentioned in the Act and one that would effectively extend limitation [page637] periods indefinitely. GSK argues that this approach would reverse the onus of proving incapacity that s. 7(2) imposes on the claimant. GSK appears to argue that because "psychological strength" is subjective, it would be open for anyone to claim that they lack the psychological strength to commence an action. The result would be that the onus imposed by s. 7(2) would be easily met in every case. In essence, GSK submits, an easily met onus is no onus.

[109] I do not accept GSK's submission. The motion judge referred to "psychological strength" only once in his reasons, when observing that GSK's position conflated the cognitive capacity to commence an action with the psychological capacity to do so. He noted, at paras. 41-42:

The factum filed on behalf of GlaxoSmithKline asserts that in this case each of these factors [for capacity from Huang and Hengeveld] was established no later than 2005. The presumption appears to be:

-- that because David Carmichael was able to participate in the determination of the defence to be put forward at his criminal trial he had capacity to commence this action;

-- that he accepted the risk of speaking publicly through newspapers and television and website postings and other writings in spite of his expressed fear that he was concerned that bringing an action might pose a risk to his being discharged from the Brockville Mental Health Centre; and

-- that he thought about and talked about commencing litigation, in particular his discussions with [the U.S. lawyer] Andy Vickery,

he satisfied the seven factors.

To my mind, the application of those factors, in this way, continues the same mistake. It fails to recognize the fundamental distinction between the cognitive ability to commence an action and the psychological strength required to actually undertake the initiation of a lawsuit.

(Emphasis added)

[110] I do not read these comments as suggesting that the Huang/Hengeveld indicators of capacity must be viewed through the lens of subjective psychological strength. I read the motion judge as simply making the uncontroversial point that a person may display many indicators of cognitive capacity, yet still lack the capacity to commence a proceeding in respect of the claim because of their psychological condition.

[111] On the other hand, if the motion judge was suggesting that indicators of cognitive capacity should not be considered in evaluating a plaintiff's capacity to commence an action, I respectfully disagree. As noted above, it is relevant to consider evidence of a plaintiff's capacity to do other things, because such evidence [page638] may provide objectively verifiable indicators of capacity to commence an action.

[112] I have also concluded, however, that referring to "psychological strength" under ss. 7(1)(a) and (2) is potentially confusing and unhelpful. The expression is potentially confusing because it is apt to be misinterpreted as suggesting a subjective standard, one that simply requires a claimant to assert that they lack the personal fortitude to proceed with a claim. As I have explained, that is not the correct approach under ss. 7(1)(a) and (2). The expression is also unhelpful because a finding of a lack of psychological strength is a conclusion, but not in itself a reason for finding incapacity under s. 7(1)(a). Instead, the reasons for such a conclusion must be found in objectively verifiable indicators of incapacity, such as the Huang/Hengeveld indicators. And, as a conclusion, insufficient psychological strength is just a restatement of the statutory threshold of incapacity because of a psychological condition.

[113] As a result, although I conclude that the term "psychological strength" is best avoided under ss. 7(1) (a) and (2), based on how I interpret the motion judge to have used this expression, I would not accept this ground of appeal.

(2) Did the motion judge err in law by reversing the onus for proving incapacity contrary to s. 7(2)?

[114] GSK's second ground of appeal asserts that the motion judge erred in law by presuming that Mr. Carmichael was incapable unless GSK proved the contrary. GSK asserts that the motion judge's approach reversed the onus for proving incapacity, contrary to s. 7(2) of the Act.

[115] GSK claims that the motion judge reversed the onus at paras. 24-28 of his reasons by relying on the decision of Perell J. in C. (A.) v. Joyce, (2016), 130 O.R. (3d) 114, [2016] O.J. No. 1627, 2016 ONSC 2164 (S.C.J.), revd on other grounds C. (A.) v. Joyce, [2017] O.J. No. 281, 2017 ONCA 49 (C.A.) ["C. (A.)"]. This case involved a civil sexual assault claim and was decided at a time when the statutory limitation period for claims based on sexual assault provided that "[u]nless the contrary is proved, a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced" (Act, s. 10(3), since repealed by S.O. 2016, c. 2, Sch. 2, s. 2). GSK asserts that the motion judge effectively took the same approach by finding that Mr. Carmichael was incapable of commencing his claim until he obtained an absolute discharge from the Board and by requiring GSK to prove the contrary. [page639]

[116] I see no merit in this submission. The motion judge cited C. (A.) v. Joyce for the proposition that a plaintiff's discovery of a cause of action and their legal capacity to sue "should not be conflated": at para. 28, citing C. (A.) v. Joyce, at para. 180. The motion judge also cited the case for the proposition that "the capacity to start an action stands apart from the capacity to deal with other stressful circumstances that can be part of our daily lives": at para. 27. The motion judge then noted that the case before him required the court to apply these same distinctions, at para. 29:

In the context of the case I am asked to decide, it may well be that David Carmichael was capable of dealing with the death, the contracts, the sale as well as the other changes to his family's circumstances and, yet, remained unable to contemplate, that is remained incapable, of beginning this action.

[117] As noted above, the law recognizes that capacity is not an all-or-nothing affair. A person may have the capacity to deal with many complex matters, yet still lack the capacity to commence a particular action or indeed any action.

[118] I therefore see no error in the motion judge citing C. (A.) v. Joyce. He did not reverse the burden of proof or erroneously apply a now-repealed limitation provision applicable to sexual assault claims.

(3) Did the motion judge materially misapprehend the evidence?

[119] GSK's third ground of appeal asserts that the motion judge materially misapprehended the evidence of incapacity, leading to a palpable and overriding error in applying s. 7(1) (a).

[120] GSK asserts that the motion judge erred by finding, at para. 42, that Mr. Carmichael had proved that he lacked capacity under several of the Huang/Hengeveld indicators of capacity. GSK asserts that the motion judge "fails to particularize any evidence supporting his conclusion in paragraph 42", and that his conclusion conflicts with "the extensive evidence demonstrating that [Mr.] Carmichael was able to understand and appreciate his choices, notably those concerning issues relating to the litigation".

[121] For convenience, the relevant part of para. 42 is set out again below:

Understood from the perspective of the psychological burden being carried by David Carmichael, taking into account the evolution of his coming to terms with his role in the death of his son, particularly as interpreted by the treating professionals along the way, as assessed thereafter by Dr. Stephen Fleming, accounted for in the decisions of the Ontario Review Board and confirmed by his wife and daughter I am unable to take each of these factors as having been met prior to his absolute discharge. By way of example, I have [page640] no trouble in finding that David Carmichael would not have been able to understand the minimum choices or the decisions he would have been required to make, to appreciate the consequences of those choices, to fully understand the nature of the proceedings, to choose and keep counsel and to represent himself or distinguish between relevant and irrelevant issues.

(Emphasis added)

[122] The motion judge did not refer to any specific evidence from the record to support his findings in the underlined portion of para. 42. Mr. Carmichael's factum before this court did not do so either. When Mr. Carmichael's counsel, Mr. Smith, was asked during the oral argument of the appeal what evidence supported these findings, he referred to Dr. Fleming's report and conceded that the report did not say that Mr. Carmichael was unable "to make the minimum choices or decisions he would have been required to make" to commence an action.

[123] In my view, Dr. Fleming's evidence does not support the motion judge's findings. Dr. Fleming acknowledged on cross-examination that capacity assessments were not part of his practice and that he had never prepared one before. Still, in his report he concluded that Mr. Carmichael "was incapable of commencing a proceeding in respect of his claim because of his psychological condition". He reached this conclusion because, in his view, "the launching of legal proceedings prior to December 2009 would have placed David [Carmichael] at considerable psychological risk". But nowhere in Dr. Fleming's report or cross-examination did he suggest that Mr. Carmichael lacked any of the Huang/Hengeveld indicators of capacity until December 2, 2009. To the contrary, as I will explain below, on several of these indicators Dr. Fleming's evidence supported the opposite conclusion.

[124] In my view, therefore, the motion judge's finding that he had "no trouble" concluding that several of the Huang/ Hengeveld indicators of capacity were not met reflects a misapprehension of the evidence. A misapprehension of the evidence "may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence": Moore v. Apollo Health & Beauty Care, [2017] O.J. No. 2381, 2017 ONCA 383 (C.A.), at para. 37, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (C.A.), at p. 538 O.R. Here, the motion judge made a mistake about the substance of the evidence and failed to give proper effect to the evidence, by finding that the evidence showed that several of the Huang/Hengeveld indicators of capacity were absent, when that was not so.

[125] A misapprehension of evidence justifies appellate intervention where it is palpable and overriding, that is, where the [page641] misapprehension is obvious and goes to the very core of the outcome of the case: see Moore, at para. 40; Benhaim v. St-Germain, [2016] 2 S.C.R. 352, [2016] S.C.J. No. 48, 2016 SCC 48, at para. 38; and Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165 (C.A.), at paras. 296-297, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 291. That is so here, because the motion judge's misapprehension is obvious and was essential to his conclusion that Mr. Carmichael was incapable of suing GSK until December 2, 2009, because of his psychological condition.

[126] As a result, the motion judge's decision should be set aside.

(4) Should this court make a fresh assessment of the evidence and substitute the decision that should have been made?

[127] The question then arises: what relief should be ordered?

[128] GSK asks this court to exercise remedial fact-finding powers on appeal. It says the court should make a fresh assessment of the evidence; it should find that Mr. Carmichael did not prove that he was incapable of commencing his claim against GSK because of his psychological condition before the Board granted him an absolute discharge; and it should grant summary judgment dismissing the action as statute-barred.

[129] This court has the statutory jurisdiction to grant this relief. Once a reviewable error has been found, the court has the power to make a fresh assessment of the evidence and to make any order or decision that ought to or could have been made from the court appealed from, to order a new trial, or to make any other order or decision that this court considers just: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1). This court may also draw inferences of fact from the evidence, where such an inference would not be inconsistent with a finding that has not been set aside: s. 134(4) (a).

[130] Despite having such authority, appellate courts are cautious about exercising fact-finding powers. Appellate courts will not make findings of fact if this requires the court to assess credibility or if the evidentiary basis needed to draw the necessary inferences is inadequately developed in the record at first instance: see Pucci v. Wawanesa Mutual Insurance Co., [2020] O.J. No. 1758, 2020 ONCA 265 (C.A.), at para. 61; C. (A.), at paras. 79-80, 82.

[131] At the same time, the Supreme Court of Canada's decision in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, at para. 2, per Karakatsanis J., called for a "culture shift" in courts deciding summary judgment motions "in order to create an environment promoting timely and affordable access to the civil justice system". Moreover, as Brown J.A. has noted, because "the [page642] court's comments [at para. 2 of Hryniak] apply equally to civil appellate courts", this court's exercise of its powers under s. 134 must also strive to promote "timely and affordable access to the civil justice system": C. (A.), at para. 78.

[132] Thus, when an appellate court can find no genuine issue requiring a trial and can reach a fair and just determination of the merits of a motion for summary judgment through an appropriate exercise of its fact-finding powers under s. 134, it should do so. As the Supreme Court stated in Hryniak, when speaking of courts of first instance, "[t]his will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result": at para. 49. These comments apply equally to the exercise of fact-finding powers by a reviewing appellate court: see C. (A.), at para. 81.

[133] Moreover, in appropriate cases, appellate fact-finding can promote important values of the civil justice system. As Doherty J.A. stated in Pucci, at para. 62:

Appellate fact-finding can . . . promote finality and efficiency in the civil justice process. In civil proceedings, appellate courts should avoid ordering a new trial if, in light of the nature of the factual issues, and the state of the trial record, the appellate court can confidently make the necessary factual findings without working any unfairness to either party: [C. (A.)], at para[s]. 78-80.

[134] Based on all the circumstances, I have concluded that this is an appropriate case for this court to exercise its fact-finding powers under s. 134.

[135] I reach this conclusion for five reasons:

(1) The appeal does not raise questions of credibility, but rather depends crucially on the court's appreciation of the expert evidence: see Bryars Estate v. Toronto General Hospital, 1997 CanLII 2381 (ON CA), [1997] O.J. No. 3727, 152 D.L.R. (4th) 243 (C.A.), at para. 41;

(2) The record is complete for the purpose of deciding whether to grant summary judgment. The record includes affidavits, transcripts of cross-examinations and examinations for discovery, medical reports and other information that was before the Board;

(3) The parties do not materially dispute the facts; they dispute the legal significance of the facts, arising from a documentary record. This court is therefore as well placed as the motion judge to decide the issues;

(4) Neither party asked this court to remand the matter to the Superior Court for redetermination if it set aside the motion judge's order; and [page643]

(5) The tragic events of this case occurred almost 16 years ago and have now been before the courts for almost a decade. This gives particular poignancy to Hryniak's admonition, that the "[p]rompt judicial resolution of legal disputes allows individuals to get on with their lives": at para. 25.

[136] I now turn to make a fresh assessment of the evidence and to consider the order that the court below should have made.

(5) Did Mr. Carmichael prove that he was incapable of commencing this action against GSK until December 2, 2009 because of his psychological condition?

[137] I will first summarize the two-step process for a summary judgment motion under Rule 20 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] mandated by Hryniak. I will then apply that approach to the evidence in this case.

(a) Hryniak's two-step process for a summary judgment motion

[138] Rule 20.04(2) of the Rules of Civil Procedure, provides:

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.

[139] It is unclear from the motion judge's reasons and the record before this court whether, in ordering that Mr. Carmichael's action is not barred by the Act, the motion judge proceeded under rule 20.04(2)(a) or (b). While I will assess the issue under rule 20.04(2)(a), in accordance with the approach in Hryniak, even if I [page644] were to proceed under rule 20.04(2)(b), I would still be satisfied that it is appropriate to grant summary judgment.

[140] Hryniak and the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] 1 S.C.R. 126, [2014] S.C.J. No. 8, 2014 SCC 8, established a two-step process on a summary judgment motion:

-- First, the motion judge asks whether there is a genuine issue requiring a trial, based only on the evidence before the court, and without using the new fact-finding powers under rules 20.04(2.1) and (2.2), to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence. There will be no genuine issue requiring a trial when the evidence on the motion allows the judge to make the necessary findings of fact and to apply the law to the facts, and where granting summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak, at para. 66; Bruno, at para. 22.

-- Second, if there is a genuine issue requiring a trial, the motion judge should then ask whether a trial can be avoided by using the new fact-finding powers to weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence. The motion judge has a discretion to use these powers where it would lead to a fair and just result and would serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole: Hryniak, at para. 66; Bruno, at para. 22.

[141] Hryniak did not change the established evidentiary obligation on a motion for summary judgment for each party "to put its best foot forward": see Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423, [1996] O.J. No. 1658 (Gen. Div.), at p. 434 O.R., affd [1997] O.J. No. 3754 , 1997 CarswellOnt 3496 (C.A.); 2212886 Ontario Inc. v. Obsidian Group Inc., [2018] O.J. No. 3980, 2018 ONCA 670, 83 B.L.R. (5th) 186 (C.A.), at para. 49, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 391. The summary judgment judge is entitled to assume that the evidentiary record is complete and that no more evidence would be available at trial: see Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (C.A.), at para. 17; Tim Ludwig Professional Corp. v. BDO Canada LLP (2017), 137 O.R. (3d) 570, [2017] O.J. No. 1865, 2017 ONCA 292 (C.A.), at para. 54; and Broadgrain Commodities Inc. v. Continental Casualty Co. (c.o.b. CNA Canada), [2018] O.J. No. 2484, 2018 ONCA 438, 80 C.C.L.I. (5th) 23 (C.A.), at para. 7. [page645]

(b) Application of Hryniak's two-step process to this case

[142] It is apparent that the motion judge weighed the evidence and drew inferences from it. There was conflicting expert evidence about Mr. Carmichael's capacity to sue GSK because of his psychological condition before his absolute discharge, and the motion judge made findings on this issue.

[143] For the reasons I have already given, I agree with the motion judge's implicit conclusion that this was an appropriate case to grant summary judgment: it would lead to a fair and just result and would serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole: see above, at para. 135. Thus, I would find this to be an appropriate case to exercise the fact-finding powers under rules 20.04(2), (2.1), to weigh the evidence and draw reasonable inferences from it.

[144] I will now apply those powers to consider what the evidence shows on each of the Huang/Hengeveld indicators of capacity. I will also consider two other relevant considerations in the context of this case: whether Mr. Carmichael's doctors recommended that he not sue GSK before he received an absolute discharge, and the significance of the absolute discharge itself. As I will explain, when I weigh all the relevant considerations, I conclude that Mr. Carmichael did not prove that he was incapable of commencing his suit against GSK because of his psychological condition until December 2, 2009.

[145] I will first address the Huang/Hengeveld indicators of capacity.

(i) Did Mr. Carmichael have the ability to know or understand the minimum choices or the decisions required to make them?

[146] From 2005 to 2009, Mr. Carmichael understood the minimum choices or decisions required for him to pursue a claim against GSK:

-- Dr. Fleming agreed that Mr. Carmichael "understood the litigation process and . . . what it would involve", and that "[h]e understood the challenges and the purposes of cross-examination, all of that". Dr. Fleming also agreed that Mr. Carmichael was, in many respects, "a functioning individual": he had the capacity to review and sign legal documents, to manage his financial affairs, to consent to treatment, to set up his business and to reach out to speak to others about mental illness and the stigma around mental illness. [page646]

-- While Dr. Fleming's opinion was that Mr. Carmichael was psychologically incapable of commencing his lawsuit until December 2, 2009, he agreed that Mr. Carmichael was "over-stating his medical condition in his affidavit" by alleging that he was "psychologically overwhelmed and incapacitated by depression, guilt and grief". He also disagreed with Mr. Carmichael's statement in his affidavit that he had incapacitating psychological problems until his absolute discharge.

-- Mr. Carmichael knew that he would likely need an expert report to prove that Paxil caused his psychosis. He was told this by the U.S. lawyer he visited in Texas in 2008 to discuss suing GSK. The evidence shows that this was a critical factor in Mr. Carmichael's decision not to sue until he did.

(ii) Did Mr. Carmichael have an appreciation of the consequences and effects of his choices or decisions?

[147] Mr. Carmichael appreciated at least some of the consequences and effects of his choices or decisions not to sue GSK before his absolute discharge on December 2, 2009:

-- On cross-examination, Dr. Fleming explained that Mr. Carmichael decided not to sue until his absolute discharge because of his concerns about the impact on himself, his wife and his family. Dr. Fleming's view was that a lawsuit would have been "too much" for Mr. Carmichael and his wife, but he agreed that it was Mr. Carmichael's "ultimate decision" not to sue GSK because he was "not prepared to take that step", and that this was "his choice". Dr. Fleming stated that Mr. Carmichael's focus was his family, not the lawsuit, and he therefore decided to "park" the lawsuit. As Dr. Fleming stated, Mr. Carmichael knew that he would "[n]eed more data".

-- On cross-examination, Mr. Carmichael explained that he "intellectually" made the decision not to sue GSK sooner because he believed that he did not have "enough information on causation". He also described how he feared "repercussions" from the Hospital because, in his view, the Hospital's chair of the mood disorder unit was "an advisor to several pharmaceutical companies", because "50 percent of [the Hospital's] funding . . . comes from the pharmaceutical industry", and because he believed that the Hospital would see a lawsuit as him failing to take responsibility for his actions. He did, however, also describe the "incredible grief of having to meet with civil litigators". [page647]

(iii) Did Mr. Carmichael have an appreciation of the nature of the proceedings?

[148] Mr. Carmichael appreciated the nature of the potential litigation proceedings against GSK before his absolute discharge on December 2, 2009:

-- As already noted, Dr. Fleming acknowledged that, well before his absolute discharge, Mr. Carmichael understood the litigation process and the challenge and purposes of cross-examination. Dr. Fleming also agreed that "at points between the period 2004 and 2009, Mr. Carmichael clearly appreciated the nature of the lawsuit and the requirements to put forward evidence to support his theory".

-- Mr. Carmichael's evidence was that he understood that he would need an expert to prove causation. He understood how limitation periods work and discussed this issue with a U.S. lawyer in 2008.

(iv) Did Mr. Carmichael have an ability to choose and keep counsel?

[149] Mr. Carmichael was able to choose and keep counsel for a potential claim against GSK long before his absolute discharge on December 2, 2009:

-- From August 2004 to September 2005, Mr. Carmichael was represented by criminal defence counsel, worked with him in defending the criminal charges against him, and discussed with him his theory that Paxil caused his psychosis.

-- From November 2005 to December 2009, Mr. Carmichael was represented by counsel at each of his five annual hearings before the Board.

-- In 2006, when Mr. Carmichael contacted GSK about sponsoring his website, his doctors were concerned that this might be misconstrued as an attempt to extort money and recommended that he "work through his lawyers".

-- In 2007, Mr. Carmichael retained a divorce lawyer. Dr. Fleming agreed on cross-examination that Mr. Carmichael had been "following the advice" of that lawyer, and at that time Mr. Carmichael was "relieved by the fact that he's going through this and having the support of the [divorce] lawyer". [page648]

-- In 2008, Mr. Carmichael travelled to Texas to meet with a U.S. lawyer and received advice on what he would need to bring his lawsuit against GSK.

(v) Did Mr. Carmichael have an ability to represent himself?

[150] Mr. Carmichael likely had the ability to represent himself before his absolute discharge, at least to prepare and file a statement of claim:

-- When Mr. Carmichael ultimately did prepare and file his statement of claim, in October 2011, he did so himself, unaided by counsel.

-- During the period 2005 to 2009, Mr. Carmichael researched the potential links between Paxil and his psychosis (2005 onwards), created a website on this topic (2006), gave media interviews on this issue (2006), including on national television (2007) and wrote and published a booklet on his theory (2009).

(vi) Did Mr. Carmichael have an ability to distinguish between relevant and irrelevant issues?

[151] Mr. Carmichael could distinguish between the relevant and irrelevant issues concerning his claim against GSK well before his absolute discharge on December 2, 2009:

-- As already noted, Dr. Fleming agreed that, throughout 2004 to 2009, Mr. Carmichael "articulated in a variety of different forums his theory that Paxil had caused his psychosis".

-- Mr. Carmichael understood the relevance of an expert report to prove causation and of limitation periods. He discussed both issues with U.S. counsel.

-- Both Dr. Fleming and Mr. Carmichael acknowledged that one of the reasons Mr. Carmichael chose to "park" his lawsuit was that he lacked scientific evidence showing a causal link and he needed more data.

(vii) Did Mr. Carmichael have mistaken beliefs regarding the law or court procedures?

[152] Mr. Carmichael was mistaken about the law of limitations, but his mistake does not suggest that he was incapable of suing GSK because of a psychological condition before December 2, 2009:

-- Mr. Carmichael issued his statement of claim on October 5, 2011 because he believed that the two-year limitation period [page649] was "running out". Mr. Carmichael had received a DNA report in early October 2009 that in his view showed that his genetic makeup made him particularly susceptible to Paxil's alleged side-effects. Mr. Carmichael believed that the two-year limitation period for his claim ran from this date. He testified on cross-examination: "I had to file . . . I knew I had no choice. I couldn't delay it any further." He therefore put together his statement of claim in "less than three days" and had it issued. This evidence strongly suggests that Mr. Carmichael could have issued his claim before October 5, 2011 (though in itself it does not prove that he could have done so before December 2, 2009).

(viii) Did Mr. Carmichael's doctors recommend that he not sue GSK before he received an absolute discharge?

[153] If there were clear and unequivocal evidence that Mr. Carmichael's doctors advised him not to sue GSK until his absolute discharge because he did not have the psychological capacity to commence a lawsuit and risked a relapse of his mental illness, that would be an important factor to weigh in the balance. That was certainly the conclusion of Dr. Fleming (see above, at para. 62). But that is not what the evidence shows:

-- In 2006, when Mr. Carmichael's doctors learned that he had contacted GSK about funding his website, they told him to "work through his lawyers". They did not advise him against suing or contacting GSK through a lawyer.

-- In 2008, when Mr. Carmichael returned from meeting a U.S. lawyer in Texas, he told one of his psychiatrists, Dr. Ahmed. There is no evidence that Dr. Ahmed advised him not to sue GSK because of his psychological condition or that he risked a relapse if he commenced a suit.

-- On cross-examination on his affidavit, Mr. Carmichael was asked whether "any mental health professional [told] you that pursuing litigation against GSK with a lawyer would jeopardize your mental health". He responded: "They told me it would be stressful and that was the extent of it."

(ix) What was the significance of Mr. Carmichael's absolute discharge?

[154] I now come to the motion judge's ultimate conclusion that Mr. Carmichael's absolute discharge by the Board on December 2, 2009 was the trigger for him immediately regaining [page650] psychological capacity to sue GSK. This conclusion was supported by the opinion of Dr. Fleming, whose view was that Mr. Carmichael faced a considerable psychological risk of a relapse if he sued GSK before he received an absolute discharge (see above, at para. 63).

[155] I respectfully disagree with this conclusion. While I have no doubt that being under the Board's jurisdiction was very stressful for Mr. Carmichael and his family, I cannot accept that the Board's final ruling itself caused the immediate return of Mr. Carmichael's psychological capacity to sue GSK.

[156] Nothing in the proceedings before the Board suggested that Mr. Carmichael lacked any form of capacity until December 2, 2009, or at least not for a long time before then. To the contrary, the medical evidence before the Board consistently confirmed Mr. Carmichael's capacity. While I recognize that Mr. Carmichael's psychological capacity to sue GSK was never squarely before the Board, both the Hospital and the Board knew that Mr. Carmichael had discussed the possibility of pursuing a lawsuit against GSK, yet they never expressed any concern about his capacity to sue or whether this was in any way relevant to their decisions to recommend or grant him an absolute discharge. Instead, the message was to work through his lawyers.

[157] In particular, I note that the Hospital's final report before the Board was dated September 28, 2009. This date is significant because it means this Report provides contemporaneous evidence about Mr. Carmichael at a time that he now says he lacked capacity to sue GSK because of his psychological condition. For Mr. Carmichael's position on this appeal to succeed, then, the court must accept that, when this Hospital report was prepared, Mr. Carmichael was incapable of suing GSK because of his psychological condition. But the Hospital report supports the opposite conclusion. The report noted:

Mr. Carmichael attended his Pre-Review Board Case Conference on September 21, 2009. During this meeting he reports that he had no concerns and felt that the year had progressed very well. He also informed the treatment team that there has been no significant negative backlash from his visible involvement in Brockville Sports activities [Mr. Carmichael's sports consulting business] and that he is more active in various sporting activities across the province. Mr. Carmichael reports that he is fully aware of the community's response and feels grateful that he has been well accepted. He denies any significant financial stress in spite of the "significant financial risk involved in Brockville Sports." He went through his financial status and his hope for the future. He also reiterated that his family is looking into other avenues for income. He states that his wife and daughter have been very supportive. He also indicates that his wife appears to be coming to terms with the death of their son and that she is "grieving in her own way." He denies any detrimental effect of [page651] this grieving process on the relationship between him and his wife. He also states that his mother remains supportive. The relationship between him and his twin brother also appears to be improving.

On direct questioning Mr. Carmichael denies any features suggestive of mood disorder or psychosis.

Mental state examination was assessed as satisfactory. He displayed adequate insight into his mental disorder.

(Emphasis added)

[158] And if Mr. Carmichael had the psychological capacity to sue GSK on December 2, 2009, when he received an absolute discharge, it follows that he likely also had this capacity on September 28, 2009, when this Hospital report was prepared recommending an absolute discharge. But if that is so, Mr. Carmichael's claim was statute-barred two years later -- that is, even before this action was commenced on October 5, 2011.

[159] It follows that I would reject Dr. Fleming's opinion that Mr. Carmichael faced a substantial risk of a relapse if he sued before he received an absolute discharge on December 2, 2009. Dr. Fleming's explanation for the return of Mr. Carmichael's capacity when he obtained an absolute discharge was essentially this: "[w]ith the Ontario Review Board granting an absolute discharge, and the treatment team's endorsement of his resilience and stress management strategies, [Mr. Carmichael] felt he could proceed with the litigation". But as already noted, Mr. Carmichael's treatment team had endorsed his resilience and stress management strategies in its report of September 28, 2009, and indeed had done so much earlier, including at the fourth Board hearing in November 2008, when the Hospital had also recommended an absolute discharge. In my view, this contemporaneous evidence of Mr. Carmichael's psychological condition undercuts the basis for Dr. Fleming's opinion that Mr. Carmichael's absolute discharge triggered the immediate return of his capacity to sue GSK.

(x) Weighing all the considerations

[160] Thus, when I weigh all the relevant considerations, I conclude that the Huang/Hengeveld indicators of capacity suggest that Mr. Carmichael had the capacity to sue GSK even before his absolute discharge on December 2, 2009. This conclusion is supported by the opinion of Dr. Fleming on several points, and is strongly supported by the opinion of Dr. Rothschild.

[161] On the other hand, Dr. Fleming -- whose practice does not include providing capacity assessments and who had never prepared a capacity assessment before -- contended that Mr. Carmichael was psychologically incapable of commencing his action until he received his absolute discharge and that doing so [page652] earlier risked Mr. Carmichael's psychological health and his relationship with his wife and daughter.

[162] I have already explained why I have concluded that the absolute discharge as a trigger for the immediate return of Mr. Carmichael's capacity to sue GSK is not plausible and not supported by the contemporaneous Hospital report, and why I would reject Dr. Fleming's opinion. I would also reject Dr. Fleming's conclusion that Mr. Carmichael was advised by his medical team not to sue before his absolute discharge, because that is not what the evidence shows.

[163] The evidence before the court that I do accept does not meet Mr. Carmichael's burden under s. 7(2) of the Act to prove that he was incapable of suing GSK before December 2, 2009 because of his psychological condition. The evidence shows that Mr. Carmichael had several reasons for not suing GSK before December 2, 2009: he did not believe he had the necessary expert evidence until he received the genetic test from Dr. Lucire in October 2009; he was worried about repercussions if the Hospital decided that he was not taking responsibility for his actions; and he was concerned for his own and his family's well-being. These are understandable reasons for not commencing a lawsuit. But in my view, none of these reasons, alone or together, prove that Mr. Carmichael was incapable of suing GSK until December 2, 2009 because of his psychological condition.

[164] To the contrary, well before December 2, 2009, there were many objective indications that Mr. Carmichael had the capacity to sue GSK: he showed that he could instruct and work with lawyers and take their counsel, including his criminal defence lawyer, his lawyer before the Board, his divorce lawyer and also briefly a U.S. lawyer with whom he consulted; he managed to speak and write publicly about the horrific circumstances of his son's death, including on his website, in his "Killer Side Effects" publication, in newspaper interviews, and in a national television interview; and he could engage with GSK directly, until it was recommended that he not do so.

[165] Thus, based on the complete record before the court and the legal principles and summary judgment test that must be applied, I conclude that Mr. Carmichael did not prove that he was incapable of suing GSK because of a psychological condition until December 2, 2009. I would therefore grant summary judgment and order that the action is statute-barred.

H. Disposition

[166] I would allow the appeal and grant summary judgment dismissing the action. I would order costs payable to the appellant [page653] in the agreed amount of $30,000, inclusive of taxes and disbursements.

Appeal allowed.

Notes

1 On January 1, 2004, the Limitations Act was renamed the Real Property Limitations Act, R.S.O. 1990, c. L.15; Parts II and III, which did not relate to real property, were repealed; and the Limitations Act, 2002 came into force.

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