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LIMITATION OF ACTIONS - Extension, interruption, suspension and inapplicability - Disability

Thursday, August 20, 2020 @ 6:11 AM  


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Appeal by the defendant from the dismissal of its motion for summary judgment dismissing the action as statute barred. The respondent killed his son in 2004. At the time, the respondent was suffering from mental illness and psychotic delusions. He was also taking the antidepressant drug, Paxil, manufactured by the appellant. He was found to be not criminally responsible on account of mental disorder. He received in‑patient treatment at a psychiatric hospital. He was granted an absolute discharge in 2009. Between the date when he killed his son and when he received an absolute discharge, the respondent worked with and instructed several lawyers, including his criminal defence counsel, his counsel before the Review Board and his divorce lawyer. He commenced the present action in 2011, over seven years after he killed his son and nearly two years after he received an absolute discharge. The motion judge held that the two-year limitation period did not begin to run until the respondent received an absolute discharge in 2009. In his view, the respondent had proved that he was incapable within the meaning of s. 7(1)a) of the Limitations Act of commencing a proceeding in respect of the claim because of his psychological condition and thus rebutted the presumption of capacity. The motion judge concluded that the respondent’s absolute discharge in 2009 was the trigger for him immediately regaining psychological capacity to sue the appellant.

HELD: Appeal allowed. The action was dismissed. 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. The respondent did not prove that he was incapable of commencing his action until 2009 because of his psychological condition. The motion judge’s finding that he had no trouble concluding that several of the indicators of capacity were not met reflected a misapprehension of the evidence. The expert evidence did not support the motion judge’s findings as nowhere in the report or cross-examination did the expert suggest that the respondent lacked any of the indicators of capacity until 2009. On several of these indicators the expert’s evidence in fact supported the opposite conclusion. The motion judge’s misapprehension was essential to his conclusion that the respondent was incapable of suing the appellant until 2009 because of his psychological condition. The evidence demonstrated that from 2005 to 2009, the respondent understood the minimum choices or decisions required for him to pursue a claim against the appellant and at least some of the consequences and effects of his choices or decisions not to sue the appellant before his absolute discharge. He also appreciated the nature of the potential litigation proceedings against the appellant before his absolute discharge, he was able to choose and keep counsel for a potential claim long before his absolute discharge, and he likely had the ability to represent himself before his absolute discharge, at least to prepare and file a statement of claim. The court did not accept that the Review Board’s final ruling itself caused the immediate return of the respondent’s psychological capacity to sue the appellant. The medical evidence before the Board consistently confirmed the respondent’s capacity.

Carmichael v. GlaxoSmithKline Inc., [2020] O.J. No. 3002, Ontario Court of Appeal, G.T. Trotter, B. Zarnett and M. Jamal JJ.A., July 8, 2020. Digest No. TLD-August172020008