Jul 13, 2020

COURT OF APPEAL SUMMARIES (July 6 to 10, 2020)

Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447 (CanLII)

[Trotter, Zarnett and Jamal JJ.A.]


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

Michael F. Smith and James Yap, for the respondent

Keywords: Torts, Negligence, Product Liability, Civil Procedure, Limitation Periods, Suspension, Capacity, Summary Judgment, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 4, s. 7(1)(a), 7(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1), Rules of Civil Procedure, Rule 20.04(2), Huang v. Braga, 2016 ONSC 6306, appeal quashed, 2017 ONCA 268, leave to appeal refused, 2017 ONSC 3826, and Hengeveld v. Ontario (Transportation), 2017 ONSC 6300, Deck International Inc. v. The Manufacturers Life Assurance Company, 2012 ONCA 309, Winter v. Sherman Estate, 2018 ONCA 379, A.C. v. Joyce, 2016 ONSC 2164, rev’d on other grounds, Cook v. Joyce, 2017 ONCA 49, Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, Benhaim v. St‐Germain, 2016 SCC 48, Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 291, Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, Hryniak v. Mauldin, 2014 SCC 7, Bryars Estate v. Toronto General Hospital (1997), 152 D.L.R. (4th) 243 (Ont. C.A.), Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (Ont. C.A.); 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, leave to appeal refused, [2018] S.C.C.A. No. 391, Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (Ont. C.A.), Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438


This was a tragic case. On July 31, 2004, the respondent, DC, strangled to death his 11-year-old son. At the time, DC was suffering from mental illness and psychotic delusions. He was also taking the antidepressant drug, Paxil, manufactured by the appellant, GlaxoSmithKline Inc. (“GSK”).

DC 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.

In early 2004, DC 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.

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 “rigorous clinical monitoring” of patients for “agitation-type emotional and behavioural changes”. 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.”

Between July 31, 2004, when DC killed his son, and December 2, 2009, when he received an absolute discharge, DC 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. DC published a website and a booklet describing how he believed Paxil had caused his psychosis, gave media interviews to newspapers and a national television program, and approached GSK about sponsoring or buying his website.

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

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 DC received an absolute discharge on December 2, 2009. In his view, DC 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 Limitations Act, 2002, S.O. 2002, c. 24, Sched. B (“Act”), and had thus rebutted the presumption of capacity under s. 7(2). GSK appealed.


1. Did the motion judge err in law by applying the wrong legal test under s. 7(1)(a) of the Act?

2. Did the motion judge err in law by reversing the onus of proving incapacity?

3. Did the motion judge misapprehend the evidence regarding capacity and did this misapprehension lead to a palpable and overriding error in applying ss. 7(1)(a) and 7(2) of the Act to the evidence?


Appeal allowed.


1. No. After a detailed review of the purpose of limitation periods, applicable principles of statutory interpretation, and the case law regarding the determination of capacity, the Court concluded that capacity under ss. 7(1)(a) of the Act is to be assessed in accordance with the indicators of capacity set out in Huang v. Braga, 2016 ONSC 6306, appeal quashed, 2017 ONCA 268, leave to appeal refused, 2017 ONSC 3826, and Hengeveld v. Ontario (Transportation), 2017 ONSC 6300 (the “Huan/Hengeveld indicators of capacity”), which are as follows:

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.

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.

The person’s incapacity must also be “because of his or her physical, mental or psychological condition”. None of these terms is defined in the Act. 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. 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.

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.

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.

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 the plaintiff, or the opinion of the plaintiff’s own counsel;

· The plaintiff’s ability to commence other civil proceedings; 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.

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. 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.

While the motion judge’s reference in his reasons to DC’s “psychological strength” was potentially confusing and unhelpful, and such term should be avoided, the Court was not satisfied that this comment revealed that the motion judge had applied the wrong test of capacity under ss 7(1)(a) of the Act.

2. No. In citing A.C. v. Joyce, 2016 ONSC 2164, rev’d on other grounds, Cook v. Joyce, 2017 ONCA 49, the motion judge did not reverse the onus for proof of incapacity. The motion judge cited A.C. 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”, and 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”. 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.

3. Yes. The motion judge erred in concluding that DC “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.” The medical evidence proffered by DC did not support the motion judge’s finding. This misapprehension of the evidence was obvious and went to the very core of the outcome of the case. Accordingly, it constituted a palpable and overriding error.

While appellate courts have the power of fact-finding, they are cautious about exercising them. 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. However, in keeping with Hryniak v. Mauldin, 2014 SCC 7, 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 of the Courts of Justice Act, it should do so.

The Court concluded that, in this case, it was appropriate for it to exercise its fact-finding powers for the following reasons:

1. The appeal did not raise questions of credibility, but rather depended crucially on the court’s appreciation of the expert evidence.

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

3. The parties did not materially dispute the facts. They disputed the legal significance of the facts, arising from a documentary record. The Court was therefore as well placed as the motion judge to decide the issues.

4. Neither party asked the Court to remand the matter to the Superior Court for redetermination if it set aside the motion judge’s order.

5. The tragic events of this case occurred almost 16 years ago and have now been before the courts for almost a decade. This gave particular poignancy to Hryniak’s admonition that the “prompt judicial resolution of legal disputes allows individuals to get on with their lives”.

The Court then reviewed the two-step process for determining whether a genuine issue requiring a trial exists under Rule 20.04(2) of the Rules of Civil Procedure, as set out in Hryniak.

The Court then reviewed the medical evidence in detail and, after applying the Huang/Hengeveld indicators of capacity, concluded that DC had not proved that he was incapable of commencing the action before December 2, 2009 because of his psychological condition.

The Court therefore granted summary judgment in favour of GSK and dismissed DC’s action as statute-barred.