{"id":941,"date":"2019-08-28T22:56:20","date_gmt":"2019-08-29T02:56:20","guid":{"rendered":"http:\/\/limitations.ca\/?p=941"},"modified":"2019-08-28T22:58:06","modified_gmt":"2019-08-29T02:58:06","slug":"ontario-a-solid-addition-to-s-7-jurisprudence","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=941","title":{"rendered":"Ontario: a solid addition to s. 7 jurisprudence"},"content":{"rendered":"

Carmichael v. GlaxoSmithKline <\/em><\/a>is an important addition to s. 7<\/a> capacity jurisprudence.<\/p>\n

The facts are tragic.\u00a0 The plaintiff killed his son during a psychotic episode and was found not criminally responsible by reason of a mental disorder.\u00a0 The plaintiff sued the defendant manufacturer of the drug he alleged caused the episode.\u00a0 The defendant moved for judgment on a limitations defence.<\/p>\n

These paragraphs summarise the parties\u2019 positions:<\/p>\n

\n

[21]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Counsel for GlaxoSmithKline summarizes these submissions by noting that \u201cthe 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]<\/a><\/p>\n

[22]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Counsel 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.<\/p>\n<\/blockquote>\n

Justice Lederer undertook a nuanced and sensible approach in concluding that s. 7 operated to render the proceeding timely.<\/p>\n

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.<\/p>\n

\n

[29]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In 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\u2019s 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, \u201cdid not dispute\u201d that David Carmichael had the capacity \u201cto consent to treatment, to view his record of personal information, to provide informed consent to disclose information and to manage his financial affairs\u201d.[41]<\/a>\u00a0This 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:<\/p>\n

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\u2026 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\u2026 His business is not earning money at this stage and he relies solely on his savings\u2026. 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]<\/a><\/p>\n

[30]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Dr. Stephen Fleming states that David Carmichael was psychologically incapacitated from taking on the stress and risk of confronting GlaxoSmithKline in a legal proceeding.[43]<\/a>. Dr. Stephen Fleming was clear in his view that the ability to confront some of life\u2019s challenges does not inherently indicate capacity to start an action:<\/p>\n

    \n
  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?<\/li>\n
  2. No I don\u2019t agree with you.[44]<\/a><\/li>\n<\/ol>\n

    [31]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It 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:<\/p>\n

    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\u2019s inability to initiate the process of launching a civil suit against GSK until his absolute discharge in December 2009[45]<\/a>.<\/p>\n<\/blockquote>\n

    Justice Lederer then set the out factors for determining capacity to commence a proceeding and applied them to the plaintiff:<\/p>\n

    \n

    [40]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The factors to be considered in determining whether a party is capable of commencing an action are set out in the case of\u00a0Huang v. Braga<\/em>[58]<\/a>\u00a0and repeated in\u00a0Hengeveld v. Ontario (Transportation)<\/em>:[59]<\/a><\/p>\n

    (a)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0A person\u2019s ability to know or understand the minimum choices or decisions required to make them;<\/p>\n

    (b)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0An appreciation of the consequences and effects of his or her choices or decisions;<\/p>\n

    (c)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0An appreciation of the nature of the proceeding;<\/p>\n

    (d)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0A person\u2019s ability to choose and keep counsel;<\/p>\n

    (e)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0A person\u2019s ability to represent himself or herself;<\/p>\n

    (f)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0A person\u2019s ability to distinguish between relevant and irrelevant issue; and<\/p>\n

    (g)\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0A person\u2019s mistaken beliefs regarding the law or court procedures.<\/p>\n

    [41]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The 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:<\/p>\n