Capacity

Ontario: s. 7 capacity analyses

The Superior Court decision in Wood v. David Mitchell et al. makes two points relevant to s. 7 analyses.

First, a lawyer’s observations and views about a person’s capacity can be factors in a s. 7 analysis:

[23]            Several months after the Master wrote her endorsement, the Court of Appeal released its decision in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447 (CanLII). In that case, Jamal JA dealt comprehensively with the issue of proof of incapacity under s. 7 of the Limitations Act, 2002. At para. 105, he wrote:

(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 plaintiff’s own counsel: see e.g., Costantino v. Costantino, 2016 ONSC 7279, at para. 58; Huang, at para. 20; and Children’s Aid Society of Toronto, at para. 34;
  •      The plaintiff’s 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, rev’d 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 litigant’s ability to travel, instruct counsel, swear affidavits, and make decisions affecting legal rights, if they bear on the capacity to commence a proceeding in respect of the claim: 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, aff’d 2014 ONCA 658, 40 C.C.L.I. (5th) 12.
[Bolded emphasis added.]

[24]            Jamal JA expressly held that counsel’s opinion of a client’s capacity is evidence bearing on the issue of capacity for the purposes of s. 7 (1)(a) of the statute. He also held that evidence of the client’s ability to instruct counsel and make decisions affecting his rights will be relevant if they bear on (or are probative of) his capacity to commence a claim. To be sure, contemporaneous medical evidence is the principal means of proof of capacity or incapacity. But, as Jamal JA notes in para. 106, proof of mental illness alone is not necessarily sufficient to prove incapacity.

[25]            The Master recognized that Mr. Wood’s lawyers’ observations and views about Mr. Wood’s capacity were properly factors in the calculus. She rightly notes that this would not make the lawyers’ entire file producible per se. But, rather than delimiting the relevant portions of the file, she went straight to privilege and then held that the only producible document in the lawyers’ file would be medical evidence in the form of a formal capacity assessment, if any.

[26]            In my respectful view, the Master erred by failing to continue her analysis of relevancy. She found that the lawyers’ view was a relevant factor and then simply dismissed the request for the entire file. Mr. Veel argues that there may be many things in the file that might be relevant and not privileged. For example, if the lawyer wrote to third parties and discussed Mr. Wood’s capacity, the letter would be relevant and could not be privileged. Moreover, if the lawyer took a note of his observations of Mr. Wood’s physical, cognitive, or emotional state those could be facts relevant to capacity without being privileged communications.

Second, when assessing whether a plaintiff is represented by a litigation guardian, the question is not merely whether the plaintiff’s litigation guardian has announced him or herself to the defendants:

[44]            The discussion of “holding out” in Azzeh related to the reasons why the irregularity in the manner of appointment of the litigation guardian was nevertheless sufficient under s. 7 (1)(b). But did the Court of Appeal mean to say that holding out is always necessary to satisfy s. 7 (1)(b)? Maybe. Or perhaps there may be other factors at play in a case where litigation is actually commenced with no litigation guardian by a plaintiff who later claims he was incapacitated at the time. That is a different question and a difficult one at that.

[45]            Ms. McFarlane argues that under s. 9 of the Limitations Act, 2002, defendants have the opportunity to move to appoint a litigation guardian for a reluctant plaintiff so there is no risk of an unlimited extension of the limitation period. That may be correct. But it appears to also have been the case in Azzeh had it been argued. That may be one of many open questions to be resolved.

[46]            In my respectful view, the Master erred in law in finding that all that is relevant to the question of whether a plaintiff “is … represented by a litigation guardian in relation to the claim” under s. 7 (1)(b) of the Limitations Act, 2002, is whether…“Mr. McQueen represented himself to the any of the defendants as Mr. Wood’s litigation guardian.” That is one factor that made an imperfect commencement of a claim sufficient in Azzeh. But no case has decided that it is the only relevant factor or a necessary factor in every case. If it is, it may provide a significant loophole to de facto litigation guardians who keep quiet. In my view, it is an open question. The relevant question of law is in issue in a bona fide and not frivolous way. Such questions are for the trial judge on a full evidentiary record. They are not for resolution on a production motion. See: Jodi L. Feldman Professional Corporation v. Foulidis, 2018 CanLII 121633 (ON SC), at para. 21.

Ontario: the principles of s. 7 capacity

The Superior Court decision in Enns v. Goertzen provides a detailed consideration of the Limitation Act’s s. 7 capacity provisions.  Two points are particularly noteworthy:

  1. It summarises the authorities for the principle that s. 7 capacity is distinct from legal capacity.
  2. Although it acknowledges that the Limitations Act does not define “incapable of commencing a proceeding”, instead of considering what this means the court takes the now standard approach of applying the factors developed for determining whether a party is under disability and requires a litigation guardian.  Section 7 incapacity 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 no mental impairment.  This the analysis:

[273]      In evaluating whether evidence of the nature described above is available on this motion, it is helpful to first consider the scope of the subject matter of s. 7(1) of the Act, which focuses on an individual’s lack of capability to commence a proceeding in respect of a claim.  The phrase “incapable of commencing a proceeding” is not defined in the Act (nor is the word “incapable”).  Further, the Act does not prescribe enumerated criteria that either must or may be considered by a court in determining whether a claimant has rebutted the presumption prescribed by s. 7(2) of the Act, other than its general reference to an individual’s physical, mental or psychological condition in s. 7(1) of the Act. As I will address below, the decided cases offer some additional guidance in that regard.

[274]      First, the issue of an individual’s capability to commence a legal proceeding must not be confused with other forms of legal capacity. For example, in this instance, each of the parties has adduced evidence that they say either demonstrates that after her stroke, Ms. Enns possessed legal capacity to engage in certain activities, other than commencing a proceeding or that she did not possess legal capacity to engage in certain activities, other than commencing a proceeding, respectively.

[276]      Yet, s. 7 of the Act is exclusively focused on an individual’s capability to commence a proceeding in respect of a claim, which is distinct from an individual’s capacity, to: consent to medical treatment; manage financial affairs; or even to “discover” a claim. Indeed, in Cook v. Joyce, 2016 ONSC 2164, 130 O.R. (3d) 114, rev’d on other grounds 2017 ONCA 49, at para. 138, Perell J. articulates the clear distinction between the mental state that is required to subjectively and objectively discover that one has a claim (discoverability) and the capacity to sue.  He also distinguishes the capacity to commence an action from other legally recognized forms of capacity, at para. 178, as follows:

This type of legal phenomenon of different mental states coexisting is not unknown to the law.  The mental capacity to sue is not the same as the mental capacity to contract, or to marry, or to execute a will, or to consent to medical treatment.  To take a simple example, a teenager involved in a car accident might have discovered her claim without a litigation guardian having been appointed, the limitation period for that discovered claim would be suspended because the teenager would be a minor without the legal capacity to sue. [Emphasis added.]

Finally, he cautions that the issues of “discoverability and legal capacity to sue should not be conflated” (see: para. 180).

[277]      To that, I would add that an individual’s legal capability (or incapability) to commence a proceeding ought not to be conflated with the individual’s capacity to:  consent to medical treatment; consent to the disclosure of health related or other personal information; or to manage their own financial affairs. A conclusory finding that an individual was, for example, capable of consenting to medical treatment at a certain point in time, is not synonymous with a finding that an individual was, at that point in time, capable of commencing a proceeding in respect of a claim.  Similarly, a finding that an individual was or is incapable of managing his or her own financial affairs or property does not unequivocally prove that the person was or is incapable of commencing a proceeding.

[278]      Second, in order to negative the presumption prescribed by s. 7(2) of the Act (and stop the running of the limitation period) a claimant is not required to prove that he or she is a mental defective, a mental incompetent, or of unsound mind.  Instead, the issue remains whether a person’s physical, mental or psychological condition renders that person incapable of commencing a proceeding in respect of a claim, at any time before the appointment of a litigation guardian. If so, the accrual of the limitation period is suspended during the period of incapacity.  That standard recognizes that it is unfair to run a limitation period against a plaintiff who is incapable of commencing an action: see Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008, at paras. 29-32.
[279]      Third, the decided cases assist in identifying relevant factors for consideration when determining whether a person is incapable of commencing a proceeding in respect of a claim.  For example, in Huang v. Braga, 2016 ONSC 6306, at para. 19, leave to appeal to Divisional Court refused, 2017 ONSC 3826, Archibald J. curates from the jurisprudence, several factors that merit consideration when determining whether a party is under a disability and requires a litigation guardian specifically:
(a)        A person’s ability to know or understand the minimum choices or decisions required and 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 person’s inability to choose and keep counsel;

(e)        A person’s inability to represent him or herself;

(f)        A person’s inability to distinguish between relevant and irrelevant issues; and,

(g)        A person’s mistaken beliefs regarding the law or court procedures.

[280]      In Hengeveld v. Ontario (Transportation), 2017 ONSC 6300, at para. 21, Hebner J. considered the foregoing factors when determining whether a party was “incapable”.  Subsequently, in Carmichael v. Glaxosmithkline Inc., 2019 ONSC 2037, at para. 40, Lederer J. similarly found that the foregoing factors merit consideration when determining if a party is incapable of commencing an action in accordance with s. 7 of the Act. Indeed, I have considered the foregoing factors, in the context of the available evidence, when determining whether the evidence discloses a genuine issue with respect to Ms. Enns’ historical capacity to commence a proceeding.

The decision also holds that there is no general rule requiring medical evidence to establish historical capacity:

[281]      In Carmichael, the court was assisted by expert opinion evidence concerning the plaintiff’s ability (or lack thereof) to commence a proceeding in respect of a claim during a specified time period that occurred before the proceeding was commenced.  Expert evidence directly addressing that issue has not been adduced by any party in the context of this motion.

[282]      The defendants seize on the absence of evidence from a qualified expert, expressly opining that Ms. Enns was incapable of commencing a proceeding in respect of her claim against them any earlier than she did, as a basis to conclude that there is no genuine issue that requires a trial to determine whether she has proved facts contrary to the presumption prescribed by s. 7(2) of the Act. They posit that a plaintiff relying on an alleged historical “incapacity to sue” as a means to extend the running of a limitation period must adduce specific medical evidence that he or she lacked capacity to bring a claim within the two year limitation period.
[283]      Yet, the provisions of the Act do not mandate that evidence of that nature be adduced. I am not persuaded that such evidence must necessarily and unequivocally be lead, in every case, on behalf of a person with a claim, who seeks to prove facts contrary to the presumption prescribed by s. 7(2) of the Act. I will explain.
[284]      The jurisprudence generally lends support to the proposition that a party seeking to prove facts contrary to the presumption set out in s. 7(2) of the Act is well served by adducing medical evidence on the issue.  For example, in Cook v. Joyce, Perell J. states at para. 152:
It should not escape notice that but for the presumption of incapacity available to victims of sexual assault, a plaintiff relying on incapacity to sue as a means to extend the running of a limitation period would likely have to provide medical evidence indicating that he or she lacked the capacity to bring a claim within the two year limitation period (see: Deck International Inc. v. Manufacturers Life Insurance, 2012 ONCA 309 (Ont. C.A.), at paras. 4 and 6; Klimec v. Klos, [2013] O.J. No. 3740 (Ont. S.C.J.), at para. 25; Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264 (Ont. S.C.J.), at paras. 13-17). [Emphasis added.]

[285]      Similarly, in Deck International Inc. v. Manufacturers Life Insurance, 2012 ONCA 309, the plaintiffs appealed an order of summary judgment dismissing their action for long term disability benefits.  After recounting: the motion judge’s finding that there was insufficient evidence to support a finding of incapacity, such that s. 7 of the Act would apply; and the appellants’ submission that the motion judge failed to consider all the evidence before the court, the Court of Appeal concluded, at para 6:

We do not accept this submission.  There was no medical evidence to the effect that Mr. Donaldson lacked the capacity to commence the action within the meaning of s. 7.  There was evidence from family members as to his disability, but that is not the same thing as medical evidence going to the issue of capacity to commence an action. [Emphasis added.]

[286]      Similar sentiments were expressed in Reid v. Crest Support Services (Meadowcrest) Inc., 2013 ONSC 6264, at para. 17, and Aletkina v. Hospital for Sick Children, 2014 ONSC 6263 (Div. Ct.), at paras. 11-14.

[287]      In my view, the foregoing authorities do not establish a general legal principle that: a party that seeks to prove facts contrary to the presumption prescribed by s. 7(2) of the Act is, by necessity, required to adduce an expert medical opinion that the plaintiff lacked capacity to commence a proceeding in respect of a claim prior to the expiration of the limitation period; or that a plaintiff is always required to lead expert medical evidence that he or she is under a “legal disability”.  Although such evidence has the potential to be of great benefit in proving facts contrary to the presumption prescribed by s. 7(2) of the Act, there may be situations where evidence of the narrative circumstances alone is sufficient to negative that presumption, without the need for specified expert evidence on the point.  For example, where the evidence reveals that a “person with a claim” was unconscious while in a coma for a prolonged period of time.  In that circumstance, the type of expert medical evidence that the defendants assert must always be adduced on behalf of a person with a claim, would not be necessary in order to establish that the person was incapable of commencing a proceeding, while unconscious.
[288]      Even in the absence of a specific expert opinion of the type described by the defendants, medical evidence will often be the most compelling and expedient manner through which a party may prove the contrary to the presumption prescribed by s. 7(2) of the Act. In the absence of such evidence, a party may very well fall short of meeting its onus in that regard. Nonetheless, there have been instances where courts have concluded that a party has successfully rebutted the presumption prescribed by s. 7(2) of the Act, even in the absence of confirmatory medical opinion evidence on the issue:  for example, see Landrie, at paras. 35 and 53-56.

Ontario: you’re not a litigation guardian until you file an affidavit

The appointment of a litigation guardian will cause the limitation period to commence when the plaintiff is a minor or without capacity (see ss. 6, 7).  Does the limitation period commence when the litigation guardian holds herself out as a litigation guardian, or when the litigation guardian files the affidavit required by r. 7 of the Rules of Civil Procedure? The court in Siddiqui v. Saint Francis Xavier High School found it’s the latter:

[40]           In short, the courts have sought to protect the interest of minors and have found that it takes “clear and unequivocal” wording to strip protections away from minors and persons under disability who are incapable of protecting their own legal interests.

[42]           I conclude that the court in Socha recognized the term “litigation guardian” as a term of art when it identified the lack of any mechanism of self-appointment under the Act and then referred to the process for appointment of a litigation guardian under the Rules of Civil Procedure.

[48]           I agree with the Plaintiffs that the words of s. 6(b) of the Act must be given meaning otherwise the mere delivery of a notice letter would be sufficient.  The consequence of such a proposition would allow the running of a limitation period against a minor without affording them any measure of protection while their rights begin to fade away and would permit such a letter to be sent by anyone simply holding themselves out to be a litigation guardian.

[49]           I agree that that the determination of a minor’s rights should not turn on a question of the choice of words used in a letter. Such a proposition would not introduce certainty and would provide no protection to minors and persons under disability.

[50]           This conclusion is reinforced by the other provisions of the Act; namely ss. 9 and 14, where a prospective defendant can trigger the running of a limitation period. In those circumstances, a mere notice letter will not suffice. In short, those provisions demonstrate the balancing of rights that is required under the Act.

[51]           Section 9 (2) provides:

Appointment of litigation guardian on application or motion by potential defendant

(2) If the running of a limitation period in relation to a claim is postponed or suspended under section 6 or 7, a potential defendant may make an application or a motion to have a litigation guardian appointed for a potential plaintiff.

      Effect of appointment

(3) Subject to subsection (4), the appointment of a litigation guardian ends the postponement or suspension of the running of the limitation period if the following conditions are met:

  1.   The appointment is made by a judge on the application or motion of a potential defendant.
  1.   The judge is satisfied that the litigation guardian,
  1. has been served with the motion,
  2. has consented to the appointment in writing, or in person before the judge,

iii. in connection with the claim, knows of the matters referred to in clause 5 (1) (a),

  1. does not have an interest adverse to that of the potential plaintiff, and
  2. agrees to attend to the potential plaintiff’s interests diligently and to take all necessary steps for their protection, including the commencement of a claim if appropriate.

      Non-expiry

(4) The limitation period shall be deemed not to expire against the potential plaintiff until the later of,

(a)   the date that is six months after the potential defendant files, with proof of service on the litigation guardian,

  1.                                                                  a notice that complies with subsection (5), and
  1.                                                               a declaration that, on the filing date, the potential defendant is not aware of any proceeding by the litigation guardian against the potential defendant in respect of the claim; and

(b) the date on which the limitation period would otherwise expire after it resumes running under subsection (3).

Notice

(5) The notice,

(a) shall not be served before the first anniversary of the appointment;

(b) shall identify the potential plaintiff, the potential defendant and the claim; and

(c) shall indicate that the claim could be extinguished if a proceeding is not promptly commenced.  2002, c. 24, Sched. B, s. 9 (5).

[52]           Given all of the requirements of s. 9, it is clear that the few words found in s. 6(b) cannot be to be interpreted in such an informal manner as to negate the protections for minors available under law. Such an interpretation would be contrary to the scheme and purpose of the legislation. The balancing of rights is achieved through the provisions of s. 9 of the Act which ends the postponement of the running of the limitation period and provides a prospective defendant with a degree of certainty and finality.

Ontario: a solid addition to s. 7 jurisprudence

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:

[21]           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.[36]

[22]           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.

[29]           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”.[41] 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.[42]

[30]           Dr. Stephen Fleming states that David Carmichael was psychologically incapacitated from taking on the stress and risk of confronting GlaxoSmithKline in a legal proceeding.[43]. 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:

  1. 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?
  2. No I don’t agree with you.[44]

[31]           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[45].

Justice Lederer then set the out factors for determining capacity to commence a proceeding and applied them to the plaintiff:

[40]           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[58] and repeated in Hengeveld v. Ontario (Transportation):[59]

(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.

[41]           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.

[42]           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.

[43]           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.[60]

[44]           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.[61]

[45]           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.

Two quibbles.

First, the court asked the wrong question:

[18]           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.”[29] 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.

 

Ontario: The capacity provisions of the Limitations Act

The decision in Hengeveld v. Ontario (Transportation) contains a rare consideration of the Limitation Act’s s. 7 capacity provision.  The issue was whether to add a defendant after the presumptive expiry of the limitation period, which meant it was unnecessary for the court to undertake a complete s. 7 analysis .  Still, it’s worth reviewing when considering capacity .

Alberta: Be wary of the ultimate limitation period

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The Court of Appeal’s decision in W.P. v. Alberta is a reminder of the finality of Alberta’s ultimate limitation period. It runs from of date of injury even when the claimant is unaware of the injury or incapable of discovering it. It pauses only in narrow circumstances.  It’s harsh.

The appellants were formerly resident students at the Alberta School for the Deaf. They alleged physical, sexual, and emotional abuse by their teachers, staff, and other students. They alleged that the abuse occurred at varying times between the early 1960s until 1991.

When the appellants applied for certification of the action as a class proceeding, Alberta cross-applied for summary judgment. Alberta submitted that the appellants commenced their action after the expiry of the ultimate limitation period in section 3(1)(b) of the Limitations Act (which I don’t quote here because it’s very long, but the link takes you right to it). The chambers judge agreed and dismissed the action.

Section (3)(1)(b) provides that if a claimant doesn’t seek a remedial order within ten years after the claim arose, the defendant is entitled to immunity from liability in respect of the claim. Time begins to run from the date of the negligent or wrongful act.  Because time runs from a fixed date, the discoverability principle doesn’t apply:

[29]           […] the ultimate limitation period tolls without regard to when the alleged harm occurred, or when the fact of its occurrence was discovered or even discoverable. Rather, it begins to run merely upon the occurrence of the breach of the duty – in this case, upon the occurrence of the alleged abuse. This is not only the plain effect of the statutory language, but was its anticipated and intended effect: Limitations, Alberta Law Reform Institute Report No 2007 ABCA 347 (CanLII), 55, December 1989 at 70-71, 425 AR 123

The act does provide for the suspension of the ultimate limitation period in two circumstances. Section 4 of the act suspends time while the defendant fraudulently conceals the occurrence of the injury:

4(1)  The operation of the limitation period provided by section 3(1)(b) is suspended during any period of time that the defendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred.

(2)  Under this section, the claimant has the burden of proving that the operation of the limitation period provided by section 3(1)(b) was suspended

Section 5 suspends time when the claimant is a “person under disability”, which, pursuant to the definition in section 1(h) is either a represented adult as defined in the Adult Guardianship and Trusteeship Act, a person for whom a certificate of incapacity is in effect under the Public Trustee Act, or an adult who is unable to make reasonable judgments in respect of the claim:

5(1)  The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.

(2)  The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under this section.

The appellants relied on both sections 4 and 5. They argued that the teachers and staff of the school concealed the injuries by instructing students to tell no one about the abuse and by providing inadequate education so that the students couldn’t communicate it.

The Court of Appeal laid out the three part test for establishing fraudulent concealment:

[34] […] to demonstrate fraudulent concealment, as alleged here, which suspends the running of the ultimate limitation period, the appellants must show (1) that Alberta (or its agents or servants) perpetrated some kind of fraud; (2) that the fraud concealed the fact of their injury; and (3) that the appellants each exercised reasonable diligence to discover the fraud.

The Court of Appeal found that the appellants couldn’t satisfy the test. Though the injuries caused by abuse of children often manifest slowly and imperceptibility so that “only the passage of time and maturity allows the victim to realize the magnitude of the harms suffered, and their cause”, this has no bearing on whether the injuries have been concealed.   The appellants had no evidence that they were laboring under a misapprehension of the fact of having suffered an injury:

[36] […] While they might not have known until later that they could sue, that is not the same thing as having the fact of the wrongful conduct and its effects deliberately concealed from them. Nor does being told at the time not to discuss the abuse support an allegation of fraudulent concealment of the fact of the injury. While the evidence here strongly suggests that each of the appellants were aware of the wrongfulness of the alleged acts well before the expiry of the ultimate limitation period, we need not decide that here. It suffices to conclude that the issue of fraudulent concealment is insufficiently meritorious to require a trial.

The Court of Appeal also rejected the appellants’ reliance on section 5:

The appellants do not say that they were represented adults under the Adult Guardianship and Trusteeship Act or persons subject to a certificate of incapacity under the Public Trustee Act. And, while each of them has encountered difficulties in life, they do not show how such difficulties rendered them unable to make reasonable judgments in respect of their claims. Even the facts alleged by EP with respect to her time spent in psychiatric hospital care, which might form part of an account of a disability which suspends the operation of the ultimate limitation period, is on its own insufficient to show that the issue has merit. We are not told, for example, what that care entailed, when she was in that care, or for how long.

The Court of Appeal concluded its analysis with a warning about the high bar for invoking sections 4 or 5:

It is difficult – and [the Legislature] intended that it be difficult – for plaintiffs to persuade a court that the ultimate limitation period should not run for a period of time. It will be a rare case where deliberate concealment of the fact of an injury, or a condition which disables a claimant from making reasonable judgments, can be established within the meaning of sections 4 and 5 of the Act.

I also note the Court of Appeal’s warning that a class proceeding has no special status that allows it to survive where it would otherwise be statute-barred:

[21]           Simply put, a class proceeding is just one procedural mode of advancing a claim. The mere fact that a claim is advanced by way of a class proceeding does not endow it with special status allowing it to survive where the same claim would otherwise be doomed. More particularly, it remains subject to all the tools furnished by Part 7 of the Rules of Court for resolving claims without a full trial, including summary judgment […].

 

[22]           The foregoing applies with equal force where the summary judgment application is based upon the expiry of a limitation period relative to the claim of a proposed representative plaintiff. Where a proposed representative plaintiff’s claim is shown to be time-barred, there is no good reason for permitting the issue of certification to continue consuming judicial and litigants’ resources. Indeed, there is good reason for not doing so, since the representative plaintiff must be a member of the class. Allowing a representative plaintiff’s clearly time-barred claim to proceed further would defy the Legislature’s intent that the class proceeding be brought only by someone with a personal stake in the outcome [internal citations omitted].

Alberta: Trustees of a person under disability can delay commencing an action indefinitely (or at least for decades)

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Section 5 of the Limitations Act suspends the operation of limitation periods during the time that a claimant is a “person under disability”. In Knibb v. The Carstairs Battle Cats, the Court of Appeal confirmed that “person under disability” includes a claimant for whom an order of trusteeship has granted a trustee power to commence and settle litigation. Such a trustee can, in theory, rely on section 5 to delay commencing an action indefinitely.

The case involved a motor vehicle accident in June 2004 (and not, as one might have hoped, battle cats). The defendant struck Knibb while driving and seriously injured him. The injuries left Knibb cognitively and physically disabled.

Knibb’s mother was appointed his guardian and trustee. She filed a Statement of Claim on Knibb’s behalf in May 2006 naming as defendants the driver and owner of the motor vehicle. In June 2008, the defendants filed a Third Party Notice alleging certain third parties contributed to Knibb’s injuries by over-serving him beer. The third parties applied for a summary trial to have the Third Party Notice dismissed on the basis that it was barred by the Limitations Act.

At trial, the parties agreed that Knibb was a “dependent adult” under the Dependant Adults Act and a “represented adult” under the Adult Guardianship and Trusteeship Act, and, accordingly, a “person under disability” as defined by section 1(h) of the Limitations Act:

“person under disability” means

(i)    a represented adult as defined in the Adult Guardianship and Trusteeship Act or a person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act, or

(ii)    an adult who is unable to make reasonable judgments in respect of matters relating to a claim;

Section 5 of the Limitations Act provides as follows:

5(1)      The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.

(2)        The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under this section.

The third parties argued that the “claimant” in section 5 was Knibb’s mother and not Knibb himself. The trial judge rejected this argument.

On appeal, the appellants submitted that because the Limitations Act defines “claimant” as “the person who seeks the remedial order”, Knibb’s mother was the claimant because only she had authority and capacity to seek the remedial order. Knibb’s mother wasn’t disabled and so section 5 didn’t apply.

The appellants argued further that if section 5 does operate to suspend the limitation period during the time that a person under disability has a guardian, the guardian would be able to bring an action decades after the injury. The appellants characterised this as an “absurd” result contrary to the Limitations Act’s purpose of preventing belated actions.

The respondents submitted that Knibb, as the injured party, was the “claimant” as a matter of common sense and section 5 did apply. Moreover, if a guardian is the “claimant” under section 5, there is no situation in which the section would suspend the limitation period applicable to the claim of a person under disability. This is because it is the appointment of the guardian that defines the adult as “disabled” under section 1(h) (that is, to envoke section 5, the claimant must be a person under disability, and to be a person under disaility the claimant must have a guardian, and if a claimant has a guardian, by the appellants’ reasoning she is not a claimant under section 5).

The respondents also noted that the Limitations Act in other sections distinguishes between people who are and are not represented by guardians, such as in the case of a minor. If the Legislature had intended that guardians be included in the definition of “claimant”, it could have said so expressly.

The Court of Appeal accepted the respondents’ position:

We see no basis in the Limitation Act to hold that the “claimant” is anyone other than Knibb. This interpretation can arguably lead to undesirable consequences in that the commencement of an action could be delayed for years or perhaps decades. That said, given the express wording of the current Limitations Act and the complete absence of any provision analogous to section 59 of the former Limitations of Actions Act [which dealt with the situation where a trustee had been appointed for a person under disability, as discussed below], this interpretation is not “manifestly absurd, or extremely harsh, unjust, or capricious”.

The implication of this decision is that there is effectively no limitation period for claims arising from injuries suffered by persons under disability.

It’s also worth noting the Court of Appeal’s discussion of section 59 of the former Limitations of Actions of Act, the predecessor of section 5 of the Limitations Act. Section 59 provided as follows:

(1)  When a person entitled to bring an action to which this Part applies is under disability at the time the cause of action arises, he may commence the action at any time within 2 years from the date he ceases to be under disability.

(2)        Subsection (1) does not apply

(a) if the person under disability is a minor in the actual custody of a parent or guardian, or

(b) if the person under disability is a person in respect of whom

(i)   a committee is appointed under The Mentally Incapacitated Persons Act, or

(ii)   a guardianship order under the Dependent Adults Act is in effect and the guardianship order

(A)    appoints a plenary guardian
in respect of the person under disability, or

(B)      appoints a partial guardian who has capacity to commence an action.

The Alberta Law Reform Institute expressly rejected bringing section 59 forward into the new legislation:

We are familiar with too many cases in which a parent, a committee, or a guardian, as the case may be, has permitted a limitation period to expire without bringing a claim, to the serious prejudice of a person under disability. Hence we will not recommend that any provisions analogous to subsection (2) be included in the new Alberta Act.

The trial judge in Knibb took note of the incentive guardians have to commence actions promptly:

If a guardian did not bring an action in a reasonable time then they may suffer the consequences of being removed as guardian for instance. In any event, delay harms both parties – faded memories are not very helpful to the plaintiff who has the onus of proof.

This observation is rather at odds with the Alberta Law Reform Institute’s position.  It’s an unusual guardian that’s inexperienced enough to  allow a limitation period to expire, but has the sophistication to appreciate the impact of delay in litigation.  Regardless, one can’t fault the Court for looking to find some limit on what is otherwise a guardian’s absolute discretion to commence an action on behalf of a person under disability whenever she chooses.

Section 5 is in contrast to capacity provisions like section 7 of Ontario’s Limitations Act, 2002, which has a similar effect to the old section 59.  In Ontario, once the a litigation guardian is appointed, time begins to run for the person under disability’s claim.  This is an approach that is, on its face, more consistent with the basic purposes of limitations legislation–“certainty, evidentiary and diligence” (see the Supreme Court deceision in M.(K.) v. M.(H.) at para. 30).