Carmichael v. GlaxoSmithKline is an important addition to s. 7 capacity jurisprudence.
The facts are tragic. The plaintiff killed his son during a psychotic episode and was found not criminally responsible by reason of a mental disorder. The plaintiff sued the defendant manufacturer of the drug he alleged caused the episode. The defendant moved for judgment on a limitations defence.
These paragraphs summarise the parties’ positions:
 Counsel for GlaxoSmithKline summarizes these submissions by noting that “the contemporaneous medical records reflect the finding of mental health professionals on more than 23 occasions, commencing on October 19, 2005 and extending through December 2009, that David Carmichael had capacity, and was assessed as being capable to consent to treatment, to view his record of personal information, to provide informed consent to disclose information and to manage his financial affairs.
 Counsel for David Carmichael does not agree that he had the capacity to decide to commence and conduct this litigation at any time prior to his absolute discharge, by the Ontario Review Board, on December 2, 2009. It goes without saying, this was less than two years from the date on which this proceeding was started, being October 5, 2011.
Justice Lederer undertook a nuanced and sensible approach in concluding that s. 7 operated to render the proceeding timely.
First, he acknowledged that a person may be capable of functioning in the world, including by dealing with professional contracts, difficult life events, and significant financial transactions, without necessarily having the capacity to commence a proceeding within the meaning of s. 7.
 In the context of the case I am asked do decide, it may well be that David Carmichael was capable of dealing with the death, the contracts, the sale as well as the other changes to his family’s circumstances and, yet, remained unable to contemplate, that is remained incapable, of beginning this action. Counsel for GlaxoSmithKline points out that the expert retained on behalf of David Carmichael, Dr. Stephen Fleming, “did not dispute” that David Carmichael had the capacity “to consent to treatment, to view his record of personal information, to provide informed consent to disclose information and to manage his financial affairs”. This may be so but is his capacity to cope with these events demonstrative of the capacity to commence an action or could it be that each would be a step on the way to the rehabilitation and reconciliation required to allow him to accept what he did, confront it and live with the constant reminder that would inherently come with the commencement and continuation of a legal case? As of November 15, 2007, at the time of his conditional discharge, a Clinical Risk Assessment of David Carmichael done by Dr. A. G. Ahmed at the Brockville Mental Health Centre was, as follows:
It is the opinion of the treatment team that Mr. Carmichael continues to constitute a significant risk that will require treatment under a detention order that will allow him to live in the community in an approved accommodation. The clinically significant risk factors… include his mental disorder which though in remission on medication in a hospital setting at this stage, has presented with reoccurrence in the past. His insight into the role of stress and likely impact on his mental health remains suboptimal and will require close monitoring in a less structured environment. Reintegration into the community and the relocation of his family to a home that is yet to be settled continues to constitute significant psychosocial stresses that will require close monitoring by the treatment team… His business is not earning money at this stage and he relies solely on his savings…. This transitional situation and uncertainty about the future is significant bearing in mind the role of natural stress at the time of the index offence.
 Dr. Stephen Fleming states that David Carmichael was psychologically incapacitated from taking on the stress and risk of confronting GlaxoSmithKline in a legal proceeding.. Dr. Stephen Fleming was clear in his view that the ability to confront some of life’s challenges does not inherently indicate capacity to start an action:
- But you do agree with me, Doctor Fleming, that if you can go out and function and sell a house, get a job, draft a website, you can also file a lawsuit?
- No I don’t agree with you.
 It was the opinion of Dr. Stephen Fleming that David Carmichael was incapable of commencing a proceeding before his absolute discharge because of his psychological condition:
In my opinion David was incapable of commencing a proceeding in respect of his claim because of his psychological condition. A number of factors contributed to David’s inability to initiate the process of launching a civil suit against GSK until his absolute discharge in December 2009.
Justice Lederer then set the out factors for determining capacity to commence a proceeding and applied them to the plaintiff:
 The factors to be considered in determining whether a party is capable of commencing an action are set out in the case of Huang v. Braga and repeated in Hengeveld v. Ontario (Transportation):
(a) A person’s ability to know or understand the minimum choices or decisions required to make them;
(b) An appreciation of the consequences and effects of his or her choices or decisions;
(c) An appreciation of the nature of the proceeding;
(d) A person’s ability to choose and keep counsel;
(e) A person’s ability to represent himself or herself;
(f) A person’s ability to distinguish between relevant and irrelevant issue; and
(g) A person’s mistaken beliefs regarding the law or court procedures.
 The factum filed on behalf of the GlaxoSmithKline asserts that in this case each of these factors was established no later than 2005. The presumption appears to be:
- that because David Carmichael was able to participate in the determination of the defence to be put forward at his criminal trial he had capacity to commence this action;
- that he accepted the risk of speaking publicly through newspapers and television and website postings and other writings in spite of his expressed fear that he was concerned that bringing an action might pose a risk to his being discharged from the Brockville Mental Health Centre; and
- that he thought about and talked about commencing litigation, in particular his discussions with Andy Vickery;
he satisfied the seven factors.
 To my mind, the application of those factors, in this way, continues the same mistake. It fails to recognize the fundamental distinction between the cognitive ability to commence an action and the psychological strength required to actually undertake the initiation of a lawsuit. Understood from the perspective of the psychological burden being carried by David Carmichael, taking into account the evolution of his coming to terms with his role in the death of his son, particularly as interpreted by the treating professionals along the way, as assessed thereafter by Dr. Stephen Fleming, accounted for in the decisions of the Ontario Review Board and confirmed by his wife and daughter I am unable to take each of these factors as having been met prior to his absolute discharge. By way of example, I have no trouble in finding that David Carmichael would not have been able to understand the minimum choices or the decisions he would have been required to make, to appreciate the consequences of those choices, to fully understand the nature of the proceedings, to choose and keep counsel and to represent himself or to distinguish between relevant and irrelevant issues.
 The death of a child would cause any parent to be devastated. It would be that much more terrible for a parent to accept being the instrument of that death:
Finally, and importantly, the launching of legal proceedings prior to December 2009 would have placed David at considerable psychological risk. The trauma of Ian’s death resulted in the forced surrendering of David’s comforting illusions and assumptions that his sense of self (i.e., organizing principles and values that maintain self-esteem and shape the data of experience). His assumptive world, that set of assumptions or beliefs that secure and ground individuals and provide a sense of reality, purpose, and meaning, was sorely challenged if not destroyed by David killing his son. The fracturing of David’s assumptive world resulted in substantial psychological upheaval and left him feeling fearful, insecure, and vulnerable. Launching legal proceedings prematurely would threaten the process of re-building shattered assumptions, finding meaning after Ian’s death and precipitate a relapse.
 I end where I began, with the comments of the judge who found David Carmichael not criminally responsible for the death of his son:
… one can only begin to imagine Mr. Carmichael’s anguish when, through medical intervention, his depression began to lift, his delusional beliefs began to abate and the terrible knowledge of his actions descended – the crash into reality described by Dr. Hucker.
 It is not difficult to understand and accept a professional judgement that a person struggling with such a realization would be psychologically impaired if not destroyed, at least for a period of time and that his capacity to function fully would take time to return.
First, the court asked the wrong question:
 It is on this basis that it is submitted that any claim David Carmichael may have against GlaxoSmithKline would have been discovered by “a reasonable person with the abilities and in the circumstances of the person with the claim.” But was David Carmichael the “reasonable person” to whom the legislation refers? This is the question that is at the core of this motion.
The Limitations Act doesn’t refer to one reasonable person. It refers to a reasonable person with the abilities and in the circumstances of the plaintiff. The question isn’t “who is the ‘reasonable person’?”, but “what are the plaintiff’s abilities and circumstances that inform the ‘reasonable person’ test?”.
In any event, as the court noted, this is a matter of discovery, and discovery is unrelated to s. 7. A person can have capacity to discover a claim while being without capacity to commence a proceeding in respect of that claim. Or, perhaps more likely, a person can have the capacity to discover a claim but then, as a result of a psychological or physical condition, lose the capacity to commence a proceeding in respect of the claim. This is why s. 7 suspends a limitation period instead of delaying its commencement.
Second, the court didn’t address the most vexing aspect of s. 7: what does it mean to be “incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition”? Instead, the court applied the factors developed for determining whether a party is under disability and requires a litigation guardian. Section 7 encompasses parties under disability, but is much broader. For example, s. 7 arguably encompasses a circumstance where a person is physically unable to commence a proceeding, perhaps because of some incapacitating injury, but has not mental impairment. None of the considerations applied by the court would be relevant in that circumstance: the plaintiff’s decision-making abilities would be fine; he would simply be physically unable to commence a proceeding.
As a practical matter, I suspect the court’s approach is fine. I’m doubtful we’ll see a case where a plaintiff’s broken legs and arms are the bar to commencing a proceeding. Still, from a legal perspective, this approach, while practical, does little to assist in the interpretation of s. 7.