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Court of Appeal Gives Helpful Guidance on Appellate Courts’ Fact-Finding Powers

5 minute read

The Court of Appeal for Ontario has released an important decision in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, regarding the proper interpretation of s. 7(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. This section provides that the basic two-year limitation period under s. 4 of the Act does not run while a person “is incapable of commencing a proceeding in respect of the claim because of his or her personal, mental or psychological condition”. Justice Jamal’s reasons for decision are notable not only because of his clear analysis of the limitation question, but equally important in respect of his review of the Court of Appeal’s fact-finding powers. Specifically, the decision considered in what circumstances an appellate court should make a fresh assessment of the evidence.

These issues were considered in the context of a very interesting case involving an action brought by the plaintiff Carmichael against GlaxoSmithKline (GSK), the manufacturer of the anti-depressant drug Paxil. Carmichael strangled his 11-year-old son to death in 2004. After a criminal prosecution for murder, Carmichael was found not criminally responsible on account of mental disorder and placed under the jurisdiction of the Ontario Review Board.

In his action against GSK, commenced October 5, 2011, Carmichael claimed that Paxil was responsible for inducing psychosis causing him to kill his son.

GSK moved for summary judgment on the basis that the action was statute-barred. The motions judge dismissed the motion holding that the two-year limitation period did not run against Carmichael because he was incapable of commencing a proceeding due to his psychological condition under s. 7(1)(a) of the Limitations Act. GSK appealed.

Justice Jamal outlined the factors to be taken into account when determining whether a plaintiff is capable of commencing a proceeding and found that the motions judge failed to refer to any specific evidence to support his findings and that his conclusions reflected a misapprehension of the evidence.

Having set aside the motion judge’s decision, the Court of Appeal considered whether it should exercise its fact-finding powers under s. 134(4) of the Courts of Justice Act, R.S.O. 1990 c. C.43 (“CJA”).

Justice Jamal confirmed the Court’s statutory jurisdiction to conduct a fresh assessment of the evidence once a reviewable error was found and to make any order or decision that could have been made by the lower court (para. 129). The Court of Appeal can 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 (CJA, s. 134(4)(a)).

Justice Jamal observed that appellate courts have generally been cautious about exercising fact-finding powers. Courts will not do so where it requires them to assess credibility or if the evidentiary basis needed to draw the necessary inferences is inadequately developed in the record (para. 130). Justice Jamal recognized, in keeping with the Supreme Court of Canada’s call in Hryniak v. Mauldin for a “culture shift” in deciding summary judgment motions, in exercising its powers under s.134 of the CJA courts must also strive to promote “timely and affordable access to the civil justice system” (para. 131).

The Court of Appeal held that 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 (para. 132). Justice Jamal emphasized the importance of appellate fact-finding in promoting the important values of the civil justice system including finality and efficiency and providing a “proportionate, more expeditious and less expensive means to achieve a just result”.

In this case, Jamal J.A. concluded at paras. 134-135 that it was appropriate to exercise the Court’s fact-finding powers for five reasons:

  1. The appeal did not raise questions of credibility, but rather depended crucially on the Court’s appreciation of the expert evidence.
  2. The record was complete for purposes of deciding whether to grant summary judgment. The record included affidavits, transcripts of cross-examinations and examination for discovery, medical reports, and other information that was before the Ontario Review Board.
  3. The parties did not materially dispute the facts; they disputed the legal significance of the facts, as arising from a documentary record. The Court of Appeal was as well placed as the motion judge to decide the issues.
  4. Neither party asked the Court of Appeal to remand the matter back to the Superior Court for a determination.
  5. The events of this case occurred almost 16 years ago and had been before the courts for almost a decade.

The Court of Appeal then undertook its own analysis following the two-step process for summary judgment motion prescribed by Hryniak and held that Carmichael failed to prove that he was incapable of suing GSK because of a psychological condition. Accordingly the Court granted summary judgment on the basis that the action was statute-barred.

Carmichael offers helpful guidance as to when it is appropriate for an appellate court to exercise its fact-finding powers under s. 134 of the CJA and provides an excellent precedent as to how that power should be exercised.

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Peter W. Kryworuk

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