



COURT
    OF APPEAL FOR ONTARIO

CITATION: Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447

DATE: 20200708

DOCKET: C66881

Trotter, Zarnett and Jamal JJ.A.

BETWEEN

David Carmichael

Plaintiff (Respondent)

and

GlaxoSmithKline Inc.

Defendant (Appellant)

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

Michael F. Smith and James Yap, for the respondent

Heard: December 16, 2019

On appeal from the order of Justice Thomas R. Lederer of
    the Superior Court of Justice, dated April 4, 2019, with reasons reported at 2019
    ONSC 2037.

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, Sched. 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 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
    GSKs 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.

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
    GSKs 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.

(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. Carmichaels daughter and
    cause his wife to have a nervous breakdown.

[19]

Mr.
    Carmichael decided that the only way to end Ians 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 hotels 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
.

(g)

The Ontario Review Board

[23]

Because
    the Boards proceedings figure prominently in this case, it is worth saying a
    few words about its mandate.

[24]

The Boards 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]
    2 S.C.R. 625
, 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 ONCA 313, 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 ONCA 612,
252 O.A.C. 280
, 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 accuseds
    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
    SCC 7,
[2006] 1 S.C.R. 326
, at para. 19;
McAnuff (Re)
, 2016 ONCA 280
, at para. 22
.

[27]

The Board must hold a hearing not later than twelve months after making
    a disposition and every twelve 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. Carmichaels first hearing before the Board

[28]

Following
    Mr. Carmichaels first hearing before the Board, held in November 2005, the
    Board accepted the Hospitals 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 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. Carmichaels 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. Carmichaels second hearing before the Board

[34]

Following
    Mr. Carmichaels 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. Carmichaels 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 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 sons 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, CTVs 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. Carmichaels trial on which Rady J. had relied in finding
    him NCRMD. One psychiatrist believed that Mr. Carmichaels 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. Carmichaels house, his psychiatrist
    confirmed that David Carmichael, a patient in the Forensic Ward at Brockville Mental
    Health Centre, is mentally competent and able to understand and sign legal
    documents.

(n)

Mr. Carmichaels third hearing before the Board

[41]

Following
    Mr. Carmichaels 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. Carmichaels wife, daughter, and mother had recently moved
    to Brockville and he was living with them. The Hospitals 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. Carmichaels psychosis.

[45]

On Mr.
    Carmichaels 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 didnt think I had the merit for a lawsuit. I didnt have any
    evidence. And in dealing with GlaxoSmithKline, they adamantly denied there was
    any causal link. You know, so thats at that point it time it would be
    impossible.

(p)

Mr. Carmichaels fourth hearing before the Board

[46]

At Mr.
    Carmichaels 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.

[47]

The Hospitals
    evidence was that Mr. Carmichaels 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. Carmichaels family history of depression.

[48]

The
    majority found that there was insufficient history and evidence to predict Mr.
    Carmichaels 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. Carmichaels
    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. Carmichaels
    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. 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. Carmichaels 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. Thats when I felt I
    discovered my claim.

(s)

Mr. Carmichaels fifth and final hearing before the Board

[52]

Following
    Mr. Carmichaels 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 Hospitals 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. Carmichaels 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 drugs
    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.
    Lucires report:

And thats, 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 couldnt 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.
    GSKs 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.
    Carmichaels 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.
    Carmichaels 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 Davids 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 Davids response to the death of his son (depression, complicated
    grief, and trauma), the profound impact of Ians death on the Carmichaels
    individually 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 Ians
    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 sons death, which in turn interfered with
    his grieving.

[62]

Dr.
    Fleming believed that a significant contributing factor to Davids not
    pursuing legal action until December 2009 was that it was against medical
    advice. He noted that Mr. Carmichaels 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 Ians
    death resulted in the forced surrendering of Davids 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 Davids
    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 Ians death, and precipitate a relapse.

(b)

Dr. Anthony Rothschild

[64]

GSKs
    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. Carmichaels
    discovery testimony and Mr. Carmichaels 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.

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. Carmichaels multiple health care professionals did
    not change and was consistently documented in the contemporaneous medical
    records describing Mr. Carmichaels 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. Carmichaels 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. Flemings opinion that it was too traumatic for
    Mr. Carmichael to file a claim until December 2, 2009, because of the strong memories
    of his sons death:

I disagree with Dr. Flemings 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 sons 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 GlaxoSmithKlinerepeatedly 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. Flemings 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
    sons life. Contrary to Dr. Flemings 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 Judges DECISION

[68]

The motion judge dismissed GSKs motion for
    summary judgment: at para. 46. He concluded that Mr. Carmichael was
    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 Paxils 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. Carmichaels 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 7(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. Braga
, 2016 ONSC 6306, 100 C.P.C. (7th) 183, at para. 19, appeal quashed,
    2017 ONCA 268, 16 C.P.C. (8th) 59, leave to appeal refused, 2017 ONSC 3826, and
Hengeveld v. Ontario (Transportation)
, 2017
    ONSC 6300, at para. 21 (
Huang/Hengeveld
indicators of capacity):

(a)   A persons 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 persons ability to choose and keep counsel;

(e)   A persons ability to represent himself or herself;

(f)    A persons ability to distinguish between relevant and
    irrelevant issues; and

(g)   A persons mistaken beliefs regarding the law or court
    procedures.

[71]

The motion judge rejected GSKs position that
    Mr. Carmichael met each of these indicators of capacity no later than 2005. In
    his view, GSKs 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 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.
    Carmichaels 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 7(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 GSKs three grounds of appeal. As I will explain, I do
    not accept GSKs 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;

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)(a) of the
Limitations Act
,
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 persons 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] 1 S.C.R. 27, at para. 21, citing Elmer A. Driedger,
Construction
    of Statutes
, 2nd ed.

(Toronto: Butterworths, 1983), at p. 87; and
R. v. Penunsi
,
    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] 1 S.C.R. 808,
    at paras. 64-67;
Canadian Imperial Bank of Commerce v. Green
, 2015 SCC
    60, [2015] 3 S.C.R. 801, at para. 57; and
Frohlick v. Pinkerton Canada Limited
,
    2008 ONCA 3, 88 O.R. (3d) 401, 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] 2
    S.C.R. 1069, at p. 1080; see also
Frohlick
, at para. 19;
Joseph v.
    Paramount Canadas Wonderland
, 2008 ONCA 469, 90 O.R. (3d) 401, at para. 8.

[82]

Ontarios
    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
    plaintiffs right to sue with the defendants need for certainty and finality:
Canaccord Capital Corporation v. Roscoe
, 2013 ONCA 378, 115 O.R. (3d)
    641, 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:
Blacks Law Dictionary
, Bryan A. Garner, ed., 10th 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 ONCA 65, 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 persons 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), 32 O.R. (3d) 281 (Gen. Div.), at p. 294,
per
Benotto J. (as she then was), affd 37 O.R. (3d) 221 (C.A.), leave to appeal
    refused, [1998] S.C.C.A. 61;
Ohenhen (Re)
, at para. 83.

[86]

But
    the law also recognizes that a persons 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. 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:

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 persons 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
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 ONSC 4008, 120 O.R. (3d)
    768, 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 persons incapacity to pursue the particular claim at
    issue, s. 7(1)(a) seeks to promote fairness by reflecting a concern for the
    plaintiffs 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), 46 O.R. (3d) 417 (C.A.), at para. 49,
per
Borins J.A., leave to appeal refused, [2000] S.C.C.A. No. 52 (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), 48 O.R. (3d) 1 (C.A.), at paras. 35-36, revd on other
    grounds 2002 SCC 20, [2002] 1 S.C.R. 716, 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 judges factual findings, but did not address these
    indicators of capacity: 2002 SCC 20, [2002] 1 S.C.R. 716. 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 caselaw 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 persons 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 persons ability to choose and keep counsel;

e)

a persons ability to represent him or herself;

f)

a persons ability to distinguish between the relevant and irrelevant
    issues; and,

g)

a persons mistaken beliefs regarding the law or court procedures.

See
Huang
, at para. 19, citing
C.C. v.
    Childrens Aid Society of Toronto
, [2007] O.J. No. 5613 (S.C.), at paras.
    29-32;
Calvert
(Gen. Div.), at p. 298;
Kirby v. Leather
, [1965]
    2 All E.R. 441 (C.A.), at p. 444; and
Bilek v. Constitution Insurance
(1990), 49 C.P.C. (2d) 304 (Ont. 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 litigants 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 persons 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 persons body. A mental condition is a condition affecting or arising in
    a persons 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 persons 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 plaintiffs burden to prove
    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 ONSC 7279, at para. 41; and
Childrens Aid Society of
    Toronto
, at para. 25.

[102]

Lastly, I agree with the submission in Mr. Carmichaels
    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 plaintiffs 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 ONSC 409, 108 O.R. (3d) 789,
    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. The Manufacturers Life Assurance Company
, 2012 ONCA 309, at para. 6;
Winter
    v. Sherman Estate
, 2018 ONCA 379, at para. 14, leave to appeal refused,
    [2019] S.C.C.A. No. 438;
Reid v. Crest Support Services (Meadowcrest) Inc.
,
    2013 ONSC 6264, at para. 17;
Klimek v. Klos
, [2013] O.J. No. 3740
    (S.C.), at para. 25;
Hussaini v. Freedman
, 2013 ONSC 779, 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 the plaintiff, or the opinion of
    the plaintiffs own counsel: see e.g.,
Costantino v.
    Costantino
, 2016 ONSC 7279, at para. 58
;
Huang
, at para. 20; and
Childrens Aid Society of Toronto
, at para. 34;

·

The plaintiffs ability to commence other civil proceedings (see e.g.,
Asagwara v. Money Mart
, 2014 ONSC 6974, at para. 72;
Kim v. The
    Manufacturers Life Insurance Company
, 2014 ONSC 1205, at para. 55) or to
    defend criminal proceedings (see e.g.,
Winmill v. Woodstock Police Services
    Board et al.
, 2017 ONSC 2528, at para. 32, revd on other grounds, 2017
    ONCA 962, 138 O.R. (3d) 641;
Cooper v. Comer
, 2017 ONSC 4142, at para.
    57); and

·

Other indicators of capacity, such as the potential litigants 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. Rokotetsky et al.
, 2009 MBQB 129, 252
    Man.R. (2d) 115, at para. 20;
Evans v. Evans
, 2017 ONSC 4345, 96
    R.F.L. (7th) 300, at paras. 51-53; and
Kim v. The Manufacturers Life
    Insurance Company
, 2014 ONSC 1205, 31 C.C.L.I. (5th) 252, at paras. 54-60,
    affd 2014 ONCA 658, 40 C.C.L.I. (5th) 12.

[107]

I now turn to consider
    GSKs three grounds of appeal and the application of ss. 7(1)(a) and 7(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]

GSKs 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 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 GSKs
    submission. The motion judge referred to psychological strength only once in
    his reasons, when observing that GSKs 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 plaintiffs capacity to commence an action, I
    respectfully disagree. As noted above, it is relevant to consider evidence of a
    plaintiffs capacity to do other things, because such evidence 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 7(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 7(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 7(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]

GSKs 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 judges 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
A.C. v. Joyce
, 2016 ONSC 2164, 130 O.R. (3d)
    114, revd on other grounds,
Cook v. Joyce
, 2017 ONCA 49. 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, Sched. 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.

[116]

I see no merit in this
    submission. The motion judge cited
A.C. v. Joyce
for the proposition
    that a plaintiffs discovery of a cause of action and their legal capacity to
    sue should not be conflated: at para. 28, citing
A.C. 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 familys 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
A.C. 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]

GSKs 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 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. Carmichaels factum before this court did
    not do so either. When Mr. Carmichaels counsel, Mr. Smith, was asked
    during the oral argument of the appeal what evidence supported these findings,
    he referred to Dr. Flemings 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.
    Flemings evidence does not support the motion judges 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. Flemings 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. Flemings evidence supported the opposite conclusion.

[124]

In my
    view, therefore, the motion judges 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 ONCA 383, at para. 37,
    citing
R. v. Morrissey
(1995), 22 O.R. (3d) 514
    (C.A.), at p. 538. 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 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 SCC 48, [2016] 2 S.C.R. 352, at para. 38;

and
Waxman v. Waxman
(2004), 186 O.A.C.
    201 (C.A.), 44 B.L.R. (3d) 165, at paras. 296-297, leave to appeal refused,
    [2004] S.C.C.A. No. 291.

That is so
    here, because the motion judges 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 judges 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. The Wawanesa Mutual Insurance Company
, 2020 ONCA 265, at para. 61;
Cook
, at
    paras. 79-80, 82.

[131]

At
    the same time, the Supreme Court of Canadas decision in
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, 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 courts comments [at para. 2 of
Hryniak
] apply equally to civil appellate courts, this courts exercise of
    its powers under s. 134 must also strive to promote timely and affordable
    access to the civil justice system:
Cook
, 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
Cook
, 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:
Cook
, 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 courts
    appreciation of the expert evidence: see
Bryars Estate v. Toronto General
    Hospital
(1997), 152 D.L.R. (4th) 243 (Ont. 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 judges order; and

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 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
, R.R.O. 1990, Reg. 194, provides:

(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 judges reasons and the record before this court whether, in
    ordering that Mr. Carmichaels action is not barred by the Act, the motion
    judge proceeded under r. 20.04(2)(a) or r. 20.04(2)(b). While I will assess the
    issue under r. 20.04(2)(a), in accordance with the approach in
Hryniak
,
    even if I were to proceed under r. 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 SCC 8, [2014] 1 S.C.R. 126, 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
rr. 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), 28 O.R. (3d) 423 (Gen. Div.), at p.
    434, affd [1997] O.J. No. 3754 (Ont. C.A.);
2212886 Ontario Inc. v.
    Obsidian Group Inc.
, 2018 ONCA 670, 83 B.L.R. (5th) 186, at para. 49, leave
    to appeal 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), 164 D.L.R. (4th) 257 (Ont. C.A.), at para. 17;
Tim
    Ludwig Professional Corporation v. BDO Canada LLP
, 2017 ONCA 292, 137 O.R. (3d) 570, at para. 54; and
Broadgrain
    Commodities Inc. v. Continental Casualty Company (CNA Canada)
, 2018 ONCA
    438, 80 C.C.L.I. (5th) 23, at para. 7.

(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. Carmichaels 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
    judges 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 r. 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. Carmichaels 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.

·

While Dr. Flemings 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.
    Carmichaels 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. Carmichaels 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. Flemings view was that a
    lawsuit would have been too much for Mr. Carmichael and his wife, but he agreed
    that it was Mr. Carmichaels 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. Carmichaels 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 Hospitals chair
    of the mood disorder unit was an advisor to several pharmaceutical companies,
    because 50 percent of [the Hospitals] 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.

(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. Carmichaels 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
    hes going through this and having the support of the [divorce] lawyer.

·

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 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 Paxils 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 couldnt 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.
    Carmichaels doctors recommend that he not sue GSK before he received an absolute
    discharge?

[153]

If there were clear
    and unequivocal evidence that Mr. Carmichaels 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. Carmichaels 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. Carmichaels absolute discharge?

[154]

I now come to the motion
    judges ultimate conclusion that Mr. Carmichaels absolute discharge by the
    Board on December 2, 2009 was the trigger for him immediately regaining
    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
    Boards jurisdiction was very stressful for Mr. Carmichael and his family, I
    cannot accept that the Boards final ruling itself caused the immediate return
    of Mr. Carmichaels 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. Carmichaels capacity. While I recognize that Mr. Carmichaels
    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 Hospitals 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. Carmichaels
    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. Carmichaels 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
    communitys 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 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. Carmichaels 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. Flemings 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. Flemings explanation for the return of Mr. Carmichaels capacity when
    he obtained an absolute discharge was essentially this: [w]ith the Ontario
    Review Board granting an absolute discharge, and the treatment teams
    endorsement of his resilience and stress management strategies, [Mr.
    Carmichael] felt he could proceed with the litigation. But as already noted,
    Mr. Carmichaels 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. Carmichaels psychological condition undercuts the
    basis for Dr. Flemings opinion that Mr. Carmichaels 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 earlier risked Mr.
    Carmichaels 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. Carmichaels capacity to sue GSK is not plausible and not
    supported by the contemporaneous Hospital report, and why I would reject Dr.
    Flemings opinion. I would also reject Dr. Flemings 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. Carmichaels 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 familys 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 sons 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 in the agreed amount of $30,000, inclusive of taxes and disbursements.

Released: July 8, 2020 (G.T.T.)

M. Jamal J.A.

I agree. Gary
    Trotter J.A.

I agree. B. Zarnett
    J.A.





[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.


