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Does your client have the requisite capacity to commence a law suit?: The capacity to sue – factors to consider

Carmichael v. Glaxosmithkline Inc., 2019 ONSC 2037 (CanLII), http://canlii.ca/t/j000w

The Ontario Superior Court of Justice recently examined[1] whether a litigant had the requisite mental capacity to commence a lawsuit in the context of a summary judgment motion seeking dismissal of a claim based on a limitation period defence.

The Court looked at the distinction between the discovery of a claim, and the requisite capacity to commence a claim.


In 2004 the Plaintiff killed his 11-year-old son. At his criminal trial, the Court found him not criminally responsible by reason of a mental disorder as he tragically had killed his son during a psychotic episode which was a feature of an underlying major depression. The Plaintiff underwent in-patient treatment and was conditionally discharged in 2007 and received an absolute discharge in December 2009.

On October 5, 2011, seven years after his son’s death, the Plaintiff commenced an action against the manufacturer of an anti-depressant drug he was taking at the time leading up to his son’s death. The Plaintiff alleged that his psychotic episode was caused by the drug and not by a major depression as presented at his criminal trial.

The drug company brought a motion for summary judgment seeking a dismissal of the claim as being statute-barred pursuant to the Limitations Act, 2002.The basic limitation period provides that a claim cannot be commenced after the second anniversary of the day on which the claim was discovered, or, the day “on which a reasonable person with the abilities and in the circumstances of the person with the claim ought to have known” that “injury, loss or damage” had occurred, which was caused by the person against whom the claim was made, and that a proceeding would be an appropriate means to seek to remedy it.

The drug company submitted that it was not reasonable to think that the Plaintiff did not discover the claim until within two years of the day on which the action was started, i.e., October 5, 2009. The drug company presented substantial evidence showing that the Plaintiff was aware of a possible connection between the drug and his psychotic episode long before October 5, 2009, including that: the plaintiff had discussed with his lawyers for his criminal trial that the drug had caused his psychological state; he discussed the drug with the police when he was arrested; he was informed by one of his psychiatrists in 2005 that the drug might have played a role in the psychotic episode; and in 2006 he told his doctors that he was contemplating bringing a lawsuit against the drug company.

While the evidence suggested that any claim would have been discovered prior to 2009, Justice Lederer noted that the legislation requires that it would have been discovered by “a reasonable person with the abilities and in the circumstances of the person with the claim”. Therefore, the question on the motion became: was the Plaintiff the “reasonable person” to whom the legislation refers?

Section 7 of the Limitations Act, 2002 provides that the basic limitation period 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 conditions.” Therefore, the central question was, “whether at the material time, the plaintiff had capacity necessary to commence and conduct this action.”[2]

The drug company relied on contemporaneous medical records that reflected the findings of mental health professionals that the Plaintiff “had capacity, 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.”[3]

An expert retained by the Plaintiff disagreed and concluded that the Plaintiff was psychologically incapacitated from taking on the stress and risk of confronting the drug company in a legal proceeding and that the Plaintiff was incapable of commencing a proceeding before his absolute discharge in December 2009. While the drug company retained an expert respecting the capacity issue, the expert never spoke with the Plaintiff, nor, any of his care providers.

Justice Lederer began by confirming that:

the fact that [the Plaintiff] 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.[4]

Justice Lederer referred to the case of, AC v Joyce 2016 ONSC 2164 and noted that in that case the court observed:

that the capacity to start an action stands apart form 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 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.[5]

Justice Lederer then set out the factors to be considered when determining whether a person is capable of commencing an action as set out in the case of Huang v Braga 2016 ONSC 6306, and repeated in Hengeveld v Ontario (Transportation) 2017 ONSC 3600:

  1. A person’s ability to know or understand the minimum choice or decisions required to make them;
  2. An appreciation of the consequences and effects of his or her choices or decisions;
  3. An appreciation of the nature of the proceeding;
  4. A person’s ability to choose and keep counsel;
  5. A person’s ability to represent himself of herself;
  6. A person’s ability to distinguish between relevant and irrelevant issue; and,
  7. A person’s mistaken beliefs regarding the law or court procedures.[6]

The drug company submitted that the Plaintiff satisfied these seven factors no later than 2005 as: he was able to participate in the determination of the defence to be put forward at his criminal trial; he accepted the risk of speaking publicly, and on his website, in spite of his expressed fear that he was concerned that bringing an action might pose a risk of his being discharged from the mental hospital; and he thought about and talked about commencing litigation.

Justice Lederer, however, concluded that:

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 [the Plaintiff], 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 [the Plaintiff] 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.[emphasis added][7]

Based on the expert’s evidence, testimony from the Plaintiff’s wife and daughter and medical professionals, Justice Lederer observed that “it is not difficult to understand and accept a professional judgement that a person struggling with such a realization [that he killed his child] 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.”[8]

The motion for summary judgement was dismissed.


While this is case has very tragic circumstances, this decision acts as a reminder when dealing with limitation periods, of the distinction between the discovery of a claim, and the requisite capacity to commence a claim as well as the tolling period for persons “incapable” of commencing a lawsuit.

[1] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037

[2] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037 at para 19.

[3] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037 at para 21.

[4] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037 at para 23.

[5] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037 at para 27.

[6] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037 at para 40.

[7] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037 at para 42.

[8] Carmichael v Glaxosmithkline Inc. 2019 ONSC 2037 at para 45.


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