Case information

Limitation of actions — Capacity — Psychological condition — Capacity to commence a legal proceeding — Whether a person who has been severely emotionally traumatized by a profoundly disturbing, life changing event can be psychologically incapacitated for the purpose of bringing a legal proceeding with respect to the same traumatic event, even while retaining core cognitive faculties — Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 7(1)(a).

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In 2004, the applicant, Mr. Carmichael, killed his son. At the time, he was suffering from mental illness and psychotic delusions. He was also taking the antidepressant drug Paxil manufactured by the respondent, GlaxoSmithKline Inc. (“GSK”). The applicant was charged with murder but found not criminally responsible on account of mental disorder. He received an absolute discharge in 2009. In 2011, the applicant began an action in the Ontario Superior Court of Justice suing GSK for damages. The action was commenced more than seven years after the death of the applicant’s son and almost two years after he received an absolute discharge. GSK moved for summary judgment to dismiss the action as statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Act”). The motion judge dismissed the motion, holding that that the basic two-year limitation period under s. 4 did not begin to run until the applicant received an absolute discharge. In his view, the applicant 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) of the Act, and had thus rebutted the presumption of capacity under s. 7(2).

The Ontario Court of Appeal allowed GSK’s appeal, granted the motion for summary judgment and dismissed the action as statute-barred. The Court of Appeal made five conclusions: (1) the motion judge did not apply the wrong legal test under s. 7(1)(a) of the Act; (2) the motion judge did not reverse the onus for proving capacity under s. 7(2); (3) the motion judge materially misapprehended evidence of incapacity and this led him to make a palpable and overriding error in applying s. 7(1)(a) to the evidence; (4) this was 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) the applicant did not prove that he was incapable of commencing his action against GSK until his absolute discharge because of his psychological condition.