Court File and Parties

COURT FILE NO.: CV-17-587613 DATE: 20190404

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DAVID CARMICHAEL, Plaintiff AND: GLAXOSMITHKLINE INC., Defendant

BEFORE: Lederer J.

COUNSEL: Michael F. Smith, James Yap, Counsel, for the Plaintiff Randy Sutton, Kate Findlay. Counsel, for the Defendant

HEARD: January 14, 2019

ENDORSEMENT

[1] This is a sad and difficult case, complicated by the unhappy and unfortunate circumstances that give rise to it.

[2] On July 31, 2004, the plaintiff, David Carmichael strangled his 11 year old son. David Carmichael was charged. The psychotic episode he was suffering through at the time of the death was said to be, and was accepted as, a feature of his underlying, major depression. Psychiatrists for both the Crown and the defence reported that the death was the result of the delusions which were the manifestation of that psychotic episode. On September 30, 2005, David Carmichael was found not criminally responsible by reason of a mental disorder. The judge noted:

I have considered the evidence and I make the following findings. There is no doubt in my mind that David Carmichael loved his son, Ian. He was clearly a devoted and caring parent who looked for opportunities for his son to excel notwithstanding any limitations that Ian may have had in order to build his self-esteem.

It is said that a picture paints a thousand words. The home videos do attest to Mr. Carmichael’s devotion and pride in his son. Mr. Carmichael’s statements to police support his view as does the evidence of Jeff Carmichael and Mary Caravaggio. There is not a shred of evidence of a venal motive, that Mr. Carmichael was angry with or disappointed in or ashamed of his son, Ian.

To the contrary, all of the evidence suggests he was a loving parent, encouraging father of an energetic 11-year-old. There is no reasonable alternative explanation for the terrible event except the devastating effects of mental illness… [^1]

[3] David Carmichael underwent in-patient treatment at the Brockville Mental Health Centre. He was conditionally discharged November 15, 2007 and moved into the surrounding community. On December 2, 2009, he received an absolute discharge. On October 5, 2011 David Carmichael commenced this action. He did so without the assistance of counsel.

[4] The defendant, GlaxoSmithKline Inc. is the manufacturer of an anti-depressant, Paxil. David Carmichael was taking Paxil prior to, and in the time leading up to, the death of his son. In this action David Carmichael alleges that his psychotic episode was caused by Paxil and not by a major depression, as had been presented at his trial.

[5] This a motion for summary judgment. It raises a single issue. Was the action out of time? Does the applicable limitation apply such that the action cannot succeed and should be dismissed?

[6] The Limitations Act, 2002[^2] sets what is referred to as the “basic limitation period”. Section 4 of that legislation states:

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.

[7] This demands an answer to the question: When was the claim discovered? The principles to be applied are found in section 5 of the Limitations Act, 2002:

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

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

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

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

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

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

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

[8] In bringing this motion, the defendant submitted that it is not reasonable to think that the plaintiff did not discover this claim until after October 5, 2009, which is to say within two years of the day on which the action was initiated by the issuance of the Statement of Claim. To the defendant it must have been or should have been discovered earlier.

[9] During June 2003, David Carmichael, suffering from personal and financial stress, was provided Paxil by his brother, which David Carmichael took to help him cope with his reported depression.[^3] His brother, who was also depressed, had benefited from Paxil.[^4] Subsequently, in July 2003, David Carmichael was prescribed Paxil by his doctor.[^5] David Carmichael stopped taking Paxil in March 2004.[^6] At the time of his withdrawal from Paxil, David Carmichael undertook internet research. He viewed webpages regarding the side effects of Paxil, including those that describe withdrawal symptoms, and alleged that violence and the desire to commit suicide or kill someone were potential side effects of Paxil.[^7] David Carmichael looked at webpages reporting on a lawsuit commenced by the family of Donald Schell against the predecessor of GlaxoSmithKline Inc. (the defendant) after Donald Schell killed himself and three others while, allegedly, taking Paxil.[^8]

[10] In May 2004, David Carmichael’s symptoms of depression resumed. He started feeling overwhelmed due to his busy work schedule. At about this time, GlaxoSmithKline issued a statement, to the medical community, regarding Paxil and advising that clinical trials and post-marketing reports had described individuals with severe agitation-type adverse events coupled with harm to others, including aggression.[^9] GlaxoSmithKline noted that, although a causal relationship between Paxil and the symptoms had not been established,[^10] Paxil users should undergo rigorous clinical monitoring for agitation-type emotional and behavioural changes.[^11] A further statement was issued by Health Canada in June 2004 applicable to Paxil and other anti-depressants.[^12]

[11] On July 8, 2004 without consulting the physician who had prescribed Paxil the preceding year (or any other physician), David Carmichael, on his own, started using Paxil.[^13] Approximately one week later, David Carmichael decided to increase the Paxil doses he was taking beyond the recommended dose for depression, again, without talking to a doctor.[^14] David Carmichael discussed increasing his dosage with his brother, who recommended that he see his doctor. David Carmichael did not follow this advice.[^15] Within two weeks of increasing the dose, David Carmichael devised a plan to drown himself and his son. Approximately one week later, David Carmichael strangled his son but decided not to kill himself.

[12] At the time of the criminal proceedings, David Carmichael and his lawyers discussed the theory that Paxil, rather than his underlying major depressive disorder, had caused the psychological state that led to the death of his son.[^16] In fact, on the day of his arrest, David Carmichael discussed the possible involvement of Paxil with the police.[^17] In preparing his criminal defence, the lawyers acting for David Carmichael sought advice in relation to this theory.[^18] As it transpired, for the purposes of the criminal trial, the psychotic episode was blamed on major depression. The defence was successful in achieving a verdict of not criminally responsible.

[13] Before this approach to the trial was taken, during February 2005, David Carmichael was informed, by one of his psychiatrists, that in his opinion, Paxil may have played a role in the psychotic episode which resulted in the death of David Carmichael’s son.[^19]

[14] Documentation from the product monograph relating to the reported adverse effects of Paxil, including aggression and harm to others, was provided to David Carmichael. He testified that this information made him angry. It helped him recover from his depression.[^20] David Carmichael wrote to the media in July 2006 stating that he killed his son while on Paxil and psychotic.[^21] On September 26, 2006, David Carmichael told his doctors that he and his wife believed that his taking Paxil contributed to his psychotic episode and that they were contemplating bringing a lawsuit against GlaxoSmithKline.[^22]

[15] In a television interview aired, on April 21, 2007, in which David Carmichael took part, a psychiatrist, Dr. Peter Breggin, stated that he believed the psychosis suffered by David Carmichael looked to be directly related to Paxil.[^23] Thereafter, during March 2008, David Carmichael travelled to Texas to meet an American attorney, Andy Vickery, regarding a potential lawsuit against GlaxoSmithKline in respect of Paxil.[^24] In 2001, Andy Vickery had served as counsel to the plaintiff in a case involving alleged suicidal and homicidal effects associated with Paxil and other antidepressants.[^25] This was a case that David Carmichael had identified as part of the internet research he undertook during March 2004.[^26] Among other things, David Carmichael and Andy Vickery discussed the statute of limitations.[^27] Even so, upon his return to Canada, David Carmichael decided to take no further steps.[^28]

[16] It was seven years after the death of his son that, on October 5, 2011, David Carmichael commenced this action.

[17] It follows from this history, that David Carmichael,

• from his discussions with the police at the time of his arrest,
• through his discussions with his lawyers in preparation for the trial,
• on through his treatment, and
• as demonstrated in his internet searches, personal writings and interviews, including his discussions with the American lawyer,

was aware of the possible connection between Paxil and its alleged and unfortunate side effects, long before October 5, 2009 which was two years before the action began.

[18] It is on this basis that it is submitted that any claim David Carmichael may have against GlaxoSmithKline would have been discovered by “a reasonable person with the abilities and in the circumstances of the person with the claim.”[^29] But was David Carmichael the “reasonable person” to whom the legislation refers? This is the question that is at the core of this motion. Section 7 of the Limitations Act, 2002 notes:

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.

[19] The central question, in this motion, is whether, at the material time, David Carmichael had the capacity necessary to commence and conduct this action. Counsel for GlaxoSmithKline says there is no doubt that he did. In the making this submission counsel notes that in addition to having full knowledge of his claims, the clinical notes from the treatment of David Carmichael, confirm that by August 15, 2004 he was “thinking rationally again”. David Carmichael himself testified that as early as May 2005, he had essentially recovered from his psychiatric episode.[^30] At a treatment care plan conference held on November 30, 2005, David Carmichael was described as not presenting any evidence of psychotic symptoms and his treatment team confirmed that he was capable of providing informed consent in respect of that treatment.[^31] He had “lost the delusional system which was clearly present at the time of the index offence and for some time prior to and after the index offence”.[^32]

[20] During his examination for discovery, David Carmichael agreed that for many years prior to 2009 he had the mental capacity to cope with significant life events including the death of his father-in-law, the sale of the family home in Toronto, his entry into multiple contracts relating to the operation of his consulting business, his daughter’s relocation to Brockville to live with him and his mother and his wife’s plan to move to Brockville.[^33] By November 2007, David Carmichael continued to be assessed by mental health professionals as mentally stable and not evidencing depressive or manic symptoms or psychosis, despite significant stressful life events.[^34] At his examination for discovery, David Carmichael testified that he has had no further episodes of depression or any other psychiatric issues that have impacted his capacity or mental health following his conditional discharge in November 2007.[^35]

[21] Counsel for GlaxoSmithKline summarizes these submissions by noting that “the contemporaneous medical records reflect the finding of mental health professionals on more than 23 occasions, commencing on October 19, 2005 and extending through December 2009, that David Carmichael had capacity, and was assessed as being capable to consent to treatment, to view his record of personal information, to provide informed consent to disclose information and to manage his financial affairs.[^36]

[22] Counsel for David Carmichael does not agree that he had the capacity to decide to commence and conduct this litigation at any time prior to his absolute discharge, by the Ontario Review Board, on December 2, 2009. It goes without saying, this was less than two years from the date on which this proceeding was started, being October 5, 2011.

[23] I begin this part of these reasons by noting that the fact that David Carmichael was capable of consenting to treatment, dealing with contracts associated with his professional activities or difficult family events such as the death of his father-in-law or the sale of the family home does not necessarily mean that he was capable of initiating a law suit that would have been a continuing and present reminder of his role in the death of his son.

[24] The case of A.C. v. Joyce[^37] dealt with an alleged sexual assault; one vehemently denied by the defendant. The defendant sought a summary resolution to the issue. A motion was brought saying, among other things, that if, despite the denial, there was such an assault; any claim that arose from it would have been discovered with the occurrence of the event. The assault, if it took place, occurred on May 19, 2011. The action was commenced on May 31, 2013. On this basis, it was submitted that the action was out of time. It had been started 12 days after the expiry of the basic two year limitation period.

[25] In his decision, the judge was careful to distinguish between the discovery of the claim and the capacity to institute an action. He held that the running of the limitation period did not commence until June 20, 2011, the day on which the plaintiff instructed counsel to send a demand letter, on her behalf. It was only on that day that the plaintiff had the “capacity” to sue.

[26] First, the judge drew the distinction:

To repeat the point I made above, the mental state that constitutes discoverability is not the same as the mental state of having the legal capacity to sue. In the case at bar, even if it could be said that Ms. A.C. had discovered that she had a claim for sexual assault on May 19, 2011, including a substantial awareness of the claim, it does not follow that she had the legal capacity to sue at the same time as she discovered her claim.[^38]

[27] He went on to observe 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:

This type of legal phenomenon of different mental states co-existing is not unknown to the law. The mental capacity to sue is not the same as the mental capacity to contract, or to marry, or to execute a will, or to consent to medical treatment. To take a simple example, a teenager involved in a car accident might have discovered her claim but without a litigation guardian having been appointed, the limitation period for that discovered claim would be suspended because the teenager would be a minor without the legal capacity to sue.[^39]

[28] He, then, presented his conclusion:

In the immediate case, even if Ms. A.C. discovered her sexual assault claim on May 19, 2011, which I have found not to be the case, her discovery of the claim does not entail that she had the legal capacity to sue on May 19, 2011. Discoverability and legal capacity to sue should not be conflated. Ms. A.C.’s legal capacity to sue did not occur until June 20, 2011, and it was only then that the two-year limitation period began to run.[^40]

[29] In the context of the case I am asked do 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. Counsel for GlaxoSmithKline points out that the expert retained on behalf of David Carmichael, Dr. Stephen Fleming, “did not dispute” that David Carmichael had the capacity “to consent to treatment, to view his record of personal information, to provide informed consent to disclose information and to manage his financial affairs”.[^41] This may be so but is his capacity to cope with these events demonstrative of the capacity to commence an action or could it be that each would be a step on the way to the rehabilitation and reconciliation required to allow him to accept what he did, confront it and live with the constant reminder that would inherently come with the commencement and continuation of a legal case? As of November 15, 2007, at the time of his conditional discharge, a Clinical Risk Assessment of David Carmichael done by Dr. A. G. Ahmed at the Brockville Mental Health Centre was, as follows:

It is the opinion of the treatment team that Mr. Carmichael continues to constitute a significant risk that will require treatment under a detention order that will allow him to live in the community in an approved accommodation. The clinically significant risk factors… include his mental disorder which though in remission on medication in a hospital setting at this stage, has presented with reoccurrence in the past. His insight into the role of stress and likely impact on his mental health remains suboptimal and will require close monitoring in a less structured environment. Reintegration into the community and the relocation of his family to a home that is yet to be settled continues to constitute significant psychosocial stresses that will require close monitoring by the treatment team… His business is not earning money at this stage and he relies solely on his savings…. This transitional situation and uncertainty about the future is significant bearing in mind the role of natural stress at the time of the index offence.[^42]

[30] Dr. Stephen Fleming states that David Carmichael was psychologically incapacitated from taking on the stress and risk of confronting GlaxoSmithKline in a legal proceeding.[^43]. Dr. Stephen Fleming was clear in his view that the ability to confront some of life’s challenges does not inherently indicate capacity to start an action:

Q. But you do agree with me, Doctor Fleming, that if you can go out and function and sell a house, get a job, draft a website, you can also file a lawsuit?

A. No I don’t agree with you.[^44]

[31] It was the opinion of Dr. Stephen Fleming that David Carmichael was incapable of commencing a proceeding before his absolute discharge because of his psychological condition:

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[^45].

[32] Dr. Stephen Fleming observed that the commencing of a legal action by David Carmichael would have been against medical advice. Dr. Stephen Fleming provided several examples of when increased stress had harmed the rehabilitation efforts of David Carmichael and how the Ontario Review Board regarded David Carmichael’s handling of stress as crucial to its decision regarding his discharge:

A significant contributing factor to David’s not pursuing legal action until December 2009 was that it was against medical advice. From the outset, his treatment team monitored his stress level and cautioned him about the disastrous consequences that might befall him should he begin to feel overwhelmed, i.e., the return of MDD, suicidal ideation, and psychotic thinking (ROH Interdisciplinary Progress Notes, December 22, 2004). Previous stressors (e.g., the transfer to a new unit) led to an exacerbation of his symptoms (e.g., depression, increased suicidal ideation, increased anxiety, social withdrawal, poor concentration, lethargy) (ROH Care Group Medical report, January 4, 2005; ROH Care Group, Secure Treatment Unit, Interdisciplinary Notes, January 6, seven, and February 12, 2005).[^46]

[33] I note that in the Factum of the Defendant the idea that pursuing legal action was against medical advice is questioned and the cross-examination of Dr. Stephen Fleming referred to. There is a lengthy exchange.[^47] Dr. Stephen Fleming does not concede that those treating David Carmichael thought it was right for him to proceed with an action and “work through lawyers”.[^48] Rather his doctors were responding to information that David Carmichael had been in touch with GlaxoSmithKline. It was a warning “not to act and demand in the future…”[^49] As part of this exchange, when pressed, Dr. Stephen Fleming observed:

Okay. I want to go back to make the distinction between what is part of Ian’s legacy and a desire to inform so that this doesn’t happen to other people. That is a positive and a therapeutic step. I think he controls that, he’s very careful about what he acknowledges…. [^50]

[34] David Carmichael could speak publicly but that does not demonstrate his capacity to commence a law suit. This part of the cross-examination goes on to consider an appearance David Carmichael apparently made on a popular television program:

A. Yeah. And that was extremely powerful what happened there. It didn’t go into the details, but the emotion, the affect that came out of there when he looks at his daughter. I mean, there are some parts of this that he can do if he feels that it’s consistent with Ian’s legacy. He can do it. That’s not going to say there won’t be emotion, but he can do it. Did I lose this somewhere?

Q. No, I think –so—so, the discussion with GRK’s lawyer with GSK and the concern about -- I think at one point there is a reference to “If you work with us on funding our website” –

A. Oh, right. Yeah.

Q. -- “we won’t bring a lawsuit.” That sort of discussion is, in your view, helping him deal with Ian’s legacy. And I guess I’m not understanding the distinction between that and why he can’t file the lawsuit, then…

A. I think he can discuss filing a lawsuit. I’m not –

[35] The lawyer interrupts, indicating he understands the point being made by Dr. Stephen Fleming:

Q. He just can’t do it because he has this residual concern about the impact on the rest of his life?

A. Survivability, his vulnerability, yeah. I mean, I -- I think the psychological testing in 2007 picked it up real clearly for me. But you’ve got a man who superficially is doing okay, he saying all the right things. Most of the traumatized people I’ve worked with, bereaved parents, look okay and they sound okay. They’re not okay and it doesn’t take long to find that out in an atmosphere where they feel trust.

But are they competent? Absolutely. Do they go to the supermarket and do shopping? Do they go to work? Absolutely.[^51]

[36] At David Carmichael’s final Ontario Review Board Hearing (December 2, 2009), dealing with day-to-day stress continued to be a central issue. Although his depressive disorder was in remission, it was still important that he continue to be medication compliant and seek psychiatric follow-up.[^52] Despite his efforts to re-create his old life, by the time of his absolute discharge in December 2009, David Carmichael had not resolved the stressors that preoccupied him: he had not fully reconciled his marriage, he had not found sustainable employment, his family was living at the edge of poverty, he was still taking anti-depressants and within three months he had moved from Brockville to Huntsville.[^53]

[37] The view of the professionals treating and assessing David Carmichael is confirmed by his wife Elizabeth Primrose. She confirms the constant state of anxiety and stress that the plaintiff experienced until his absolute discharge by the Ontario Review Board in December 2009. She testified that, in her view, her husband did not have the capacity to commence a lawsuit until his ties to the Brockville Mental Health Centre ended with his absolute discharge and the family had moved from Brockville to Huntsville.[^54] Their daughter, Gillian Carmichael agrees. She was aware of her father’s anxiety, stress and fear until his absolute discharge.[^55]

[38] Dr. Anthony J. Rothshild is relied on by GlaxoSmithKline. Evidently, they have done so before. Dr. Rothschild has never spoken to David Carmichael or any of his care providers. Dr. Anthony J. Rothschild, in denying any psychological incapacity of David Carmichael, noted a recurring statement in the medical records of the Brockville Mental Health Centre recounting the capacity of David Carmichael in the following words:

Mr. Carmichael is capable to consent to treatment, to view his record of personal health information, to provide informed consent to disclose information and to manage his financial affairs.

[39] This is the formulation of capacity said by counsel for GlaxoSmithKline to have been repeated in Dr. Anthony J. Rothschild’s report 23 times in relation to the period from October 19, 2005 to September 21, 2009.[^56] This approach fails to accept the distinction recognized in A.C. v. Joyce, the work and opinion of Dr. Stephen Fleming, the decisions and considerations of the Ontario Review Board as well as the as well as the evidence of the wife and daughter of David Carmichael. I make the point again, this time relying on the work of Dr. Ian Hector, staff psychiatrist of the Secure Treatment Unit (St. Lawrence Valley Correctional and Treatment Centre) who, on January 4, 2005, described David Carmichael’s condition as:

Mr. Carmichael’s mood was downcast and brooding with some significant suicidal ideation present. The anxiety levels were significantly elevated with constant level of high tension and distress. He reported back that he’s now beginning to be able to grieve actively the death of his son, and he wept vigorously on several occasions during the assessment in response to thoughts or questions about his son.

The sensorium was clear and there was no impairment of cognitive functions

Professional Diagnosis: Axis I: Major Depression, recurrent with psychotic features; Axis II: dependent personality; Axis III: Nil; Axis IV: Multiple intrafamilial and extrafamilial stressors with incarceration and charges of First Degree Murder alleged against the resident, Marital breakdown, Severe financial stress, secondary to the loss of his business; Axis V: GAF [Global Assessment of Functioning]: 10 [of 100].[^57]

Even while describing David Carmichael as profoundly ill, Doctor Ian Hector wrote:

… there was no impairment of cognitive functions.

[40] The factors to be considered in determining whether a party is capable of commencing an action are set out in the case of Huang v. Braga[^58] and repeated in Hengeveld v. Ontario (Transportation):[^59]

(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 issue; and

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

[41] The factum filed on behalf of the GlaxoSmithKline asserts that in this case each of these factors 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 Andy Vickery;

he satisfied the seven factors.

[42] 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. 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 to distinguish between relevant and irrelevant issues.

[43] The death of a child would cause any parent to be devastated. It would be that much more terrible for a parent to accept being the instrument of that death:

Finally, and importantly, the 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 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.[^60]

[44] I end where I began, with the comments of the judge who found David Carmichael not criminally responsible for the death of his son:

… one can only begin to imagine Mr. Carmichael’s anguish when, through medical intervention, his depression began to lift, his delusional beliefs began to abate and the terrible knowledge of his actions descended – the crash into reality described by Dr. Hucker.[^61]

[45] It is not difficult to understand and accept a professional judgement that a person struggling with such a realization would be psychologically impaired if not destroyed, at least for a period of time and that his capacity to function fully would take time to return.

[46] The motion is dismissed.

[47] If the parties are unable to agree as to costs I will consider written submissions on the following terms:

1. On behalf of the plaintiff, no later than 15 days after the release of these reasons. Such submissions to be no longer than three pages double spaced, not including any Bill of Costs, Costs Outline or case law that may be referred to.

2. On behalf of the defendants no later than 10 days thereafter. Such submissions to be no longer than three pages double spaced, not including any Bill of Costs, Costs Outline or case law that may be referred to.

3. On behalf of the plaintiff, in reply if necessary, no later than five days thereafter. Such submissions to be no longer than one page double spaced.

Lederer J.

Date: April 4, 2019

[^1]: Reasons for Judgment¸ September 30, 2005 (at London Ontario, Court File No.: 7779, per Rady. J.) [^2]: S.O. 2002, c. 24, Sched. B [^3]: Direct Examination of David Carmichael, at p. 31, Q. 129 [^4]: Direct Examination of David Carmichael at p. 36, Q. 144 and p. 38-39, Q. 158 [^5]: Amended Statement of Claim at para. 8; Direct Examination of David Carmichael, at p. 26, Q. 109-111; p. 29, Q 122; and p. 45, Q. 185-186 [^6]: Amended Statement of Claim, at para. 9; Direct Examination of David Carmichael, p. 52, Q. 220; p. 65, Q. 271 and p. 70-71, Q. 296-297 [^7]: Cross-Examination of David Carmichael, p. 24, Q. 100-104 and p. 25-31, Q. 106-119, 123-126 and 130. [^8]: Cross-Examination of David Carmichael, p. 29 – 30, Q. 124-125 [^9]: Letter dated May 2004 (Dear Healthcare Professional…) [^10]: Letter, dated May 2004 (Dear Healthcare Professional…); see also Cross-examination of Doctor Anthony J Rothschild, p. 41-42, Q. 138-143 [^11]: Letter, dated May 2004 (Dear Healthcare Professional…) [^12]: Health Canada Advisory, dated June 3, 2004 [^13]: Amended Statement of Claim, at paras. 10-11; Direct Examination of David Carmichael p. 90-91, Q. 365; p. 96, Q. 384-386; and p. 98, Q. 392 [^14]: Direct Examination of David Carmichael, p. 57, Q. 238; p. 91, Q. 367-368 and p. 98, Q. 392 and see also certified transcription of W5 episode "over the edge", aired April 21, 2007, p. 6, and Amended Statement of Claim at para. 11 [^15]: Direct Examination of David Carmichael p. 91-92, Q. 368 and p. 94-95, Q. 378 [^16]: Killer Side Effects by David Carmichael (http://www.davidcarmichael.com/Killer_Side_Effects_David_Carmichael.pdf ) [^17]: Cross-Examination of David Carmichael at p. 46-48, Q. 193-198 [^18]: Cross-Examination of David Carmichael p. 51-53, Q. 212-218; p. 56-57, Q. 229-230; Direct Examination of David Carmichael, p. 112, Q. 436-438 and p. 236-239, Q. 906-914 and p. 240, Q. 920 and see Memo from Doctor Rosenbloom to Phil Campbell dated September 6, 2004 [^19]: Direct Examination of David Carmichael p. 134, Q. 515 and p. 182-183, Q. 703 [^20]: Cross-Examination of David Carmichael p. 39, Q. 160-161 and p. 53, Q. 219; Direct Examination of David Carmichael p. 180 2Q. 702-704; see also Killer Side Effects by David Carmichael (supra (fn. 17)) [^21]: Killer Side Effects by David Carmichael (supra (fn. 17)) [^22]: Pre-Review Board Conference, September 26, 2006 [^23]: Cross-Examination of David Carmichael p. 112-113, Q. 432-433; Cross-Examination of Elizabeth Primrose p. 56, Q. 261; Certified Transcription of W5 Episode: "Over the Edge" p. 14 [^24]: Report of Doctor Stephen Fleming p. Dean and 16; Direct Examination of David Carmichael p. 210-211, Q. 806; Cross-Examination of Gillian Carmichael p. 39-40, Q. 215-219 and p. 41, Q. 225; Cross-Examination of Elizabeth Primrose p. 62, Q. 293-294 [^25]: Direct Examination of David Carmichael p. 223-224, Q. 859-860; Certified Transcription of a Video Presentation by Andy Vickery, p. 2-3 [^26]: Cross-Examination of Dr. Stephen Fleming p. 101-103, Q. 312-314; Cross-Examination of David Carmichael p. 175-176, Q. 668-669; Direct Examination of David Carmichael p. 211, Q. 807-808 [^27]: Cross-Examination of Doctor Stephen Fleming p. 101-100, Q. 312-314; Cross-Examination of David Carmichael p. 175-176, Q. 668-669; Direct Examination of David Carmichael p. 211, Q. 807-808 [^28]: Cross-Examination of David Carmichael p. 229, Q. 864 and p. 190, Q. 719 [^29]: See above where section 5(1)(b) of the Limitations Act, 2002 is quoted [^30]: Cross-Examination of David Carmichael p. 182-184, Q. 690-693; Affidavit of David Carmichael at para. 9; [^31]: Treatment Care Plan Conference, November 30, 2005. [^32]: Cross-Examination of Doctor Stephen Fleming p. 52-53, Q. 185-186 [^33]: Cross-Examination of David Carmichael p. 157-158 Q. 611-612 and p. 158-159 Q. 618-621 [^34]: Treatment Care Plan Conference, July 12, 2007 [^35]: Direct Examination of David Carmichael p. 198-199, Q. 763-764 and p. 201, Q. 776-779 [^36]: Factum of the Moving Defendant at para. 27 referring to Affidavit of Dr. Anthony J. Rothschild at Exhibit 1; Cross-Examination of Doctor Stephen Fleming p. 47-48, Q. 162-164; Cross-Examination of Dr. Anthony J. Rothschild p. 101-105, Q. 323-341 and p. 85, Q. 269 [^37]: 2016 ONSC 2164, 130 OR (3d) 114 [^38]: Ibid at para. 178 [^39]: Ibid at para. 179 [^40]: Ibid at para. 180 [^41]: Factum of the Moving Defendant at para. 53(a) [^42]: Report to the Ontario Review Board, (Brockville Mental Health Centre, Report Date September 22, 2008 at p. 18 (Clinical Risk Assessment) [^43]: Cross-Examination of Doctor Stephen Fleming p. 31, Q. 113; p. 39, Q. 137; p. 41, Q. 143; p. 43, Q. 150; p 44, Q. 153 and p 49, Q. 170-172. [^44]: Cross-Examination of Doctor Stephen Fleming p. 42, Q. 144 [^45]: Affidavit of Doctor Stephen Fleming, at Exhibit A (Report dated June 20, 2018) at p. 11 [^46]: Affidavit of Doctor Stephen Fleming, Exhibit A (Report dated June 20, 2018) at p. 16. [^47]: Cross-Examination of Doctor Stephen Fleming, pp. 118-122, Q. 363-375 [^48]: Cross-Examination of Doctor Stephen Fleming, p. 119, Q. 367 [^49]: Cross-Examination of Doctor Stephen Fleming, p. 119, Q. 367 [^50]: Cross-Examination of Doctor Stephen Fleming, p. 120, Q. 368 [^51]: Cross-Examination of Doctor Stephen Fleming, pp. 121-122, Q. 372-375 [^52]: Ontario Review Board, January 21, 2010. [^53]: Cross-Examination of David Carmichael p. 235-238, Q. 884-898; Affidavit of David Carmichael at para. 33 [^54]: Affidavit of Elizabeth Primrose at paras. 8-14; Cross-Examination of Elizabeth Primrose p. 96 [^55]: Affidavit of Gillian Carmichael at p 20, para. 11; pp. 20-21, paras. 13, 18, 21 and 23; Cross-Examination of Gillian Carmichael p., Q. 259-260. [^56]: Report of Anthony J. Rothschild pp. 16-25 [^57]: Admission History, January 4, 2005, by Doctor Ian Hector, records of the St. Lawrence Valley Correctional and Treatment Centre (Secure Treatment Unit), pp. 166-7 [^58]: 2016, ONSC 6306 [^59]: 2017 ONSC 6300 [^60]: Affidavit of Doctor Stephen Fleming, Exhibit A (Report dated June 20, 2018) at p. 17-18 [^61]: Reasons for Judgment, September 30, 2005 (at London Ontario, Court File No.: 7779, per Rady. J.)