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Suspension of a limitation period during a period of incapacity: a primer from the ONCA Section 7(1)(a) of the Limitations Act, 2002

5 minute read

In Carmichael v GlaxoSmithKline Inc., 2020 ONCA 447, the Ontario Court of Appeal considered the proper interpretation of s. 7(1)(a) of the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

It provides that the basic two-year limitation period in s. 4 does not run during any time in which the person with the claim is “incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition”. A person is presumed to have been capable of commencing a proceeding at all times and must therefore rebut the presumption of capacity to stop the running of the limitation period.

The facts of Carmichael v GlaxoSmithKline

The facts of this case are tragic. The respondent suffered from mental illness and psychotic delusions when, in 2004, he strangled his son to death. He was charged with first degree murder, but found to have been not criminally responsible, as a result of which he came under the jurisdiction of the Ontario Review Board until 2009, at which time he was granted an absolute discharge.

In 2011, the respondent sued the appellant manufacturer (Glaxo) of the anti-depressant Paxil, claiming that the drug had caused his psychosis. Glaxo moved for summary judgment to dismiss the action as statute-barred. The motion judge dismissed the motion, holding that the two-year limitation period did not start to run until the respondent received the absolute discharge in 2009.

The Ontario Court of Appeal disagreed that the respondent was incapable until 2009. It allowed the appeal and dismissed the respondent’s action on the basis that it was statute-barred. The parties largely agreed on the facts, but disagreed upon the legal consequences of those facts. Indeed, the Ontario Court of Appeal disagreed with the motion judge’s interpretation of the evidence and found that he had made a palpable and overriding error in applying s. 7(1)(a) to the evidence.

A determination of incapacity is often influenced significantly by expert evidence. In this case, one of the central issues was what constitutes capacity to commence a legal proceeding in circumstances involving a psychologically traumatic event.

The Ontario Court of Appeal found that expert evidence did not support the motion judge’s determination of the capacity issue. It substituted its own decision based upon a largely uncontested factual record, relying upon the approach to summary judgment motions set out by the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7.

Will a limitation period be suspended due to incapacity?

Of interest for the purposes of this blog is the Ontario Court of Appeal’s review of the correct interpretation to be given to the matter of capacity under s. 7(1)(a):

  •  Courts must give a purposive interpretation to limitation periods, which requires a balance between the plaintiff’s right to sue and the defendant’s need for certainty and finality;
  • Ontario law provides that a person has the capacity to make a decision if they are able to understand the information that is relevant to making that decision and to appreciate the reasonably foreseeable consequences of that decision or lack of decision;
  • This is a relatively low threshold, however, “capacity is not an all-or-nothing affair”; a person’s capacity can vary with the decision at issue;
  • The capacity to instruct counsel is at the higher end of the competency hierarchy because it involves the capacity to understand legal and financial issues, which are complex;
  • The provision in the current Act is more generous and liberal than the previous limitations legislation because it focuses only on the person’s capacity to commence a proceeding in respect of the proceeding at issue and therefore seeks to promote fairness by reflecting a concern for the individual’s own circumstances, thereby respecting individual differences and providing individual justice;
  • Objectively verifiable indicia of a person’s capacity/incapacity to guide a “holistic weighing” of all the evidence include, but are not limited to:
    • Ability to know or understand the minimum choices or decisions required to make them;
    • Appreciation of the consequences and effects of choices or decisions;
    • Appreciation of the nature of the proceedings;
    • Ability to choose and keep counsel;
    • Ability to represent oneself;
    • Ability to distinguish between relevant and irrelevant issues; and
    • Mistaken beliefs regarding law or court procedures;
  • The language of a “psychological” condition (relating to mental or emotional state) or “mental condition” (affecting or arising in a person’s mind, including mental disability, mental incompetency, or mental illness) that would allow a plaintiff to rebut a presumption of capacity suggests a liberal and generous interpretation of the qualifying types of conditions.

Overall, the Court of Appeal said that the plaintiff’s burden to show incapacity is easier to meet than it was under the former Act. Nonetheless, in this case, the respondent failed to meet it as none of the respondent’s medical advisors recommended that he not commence an action because he did not have the psychological capacity to do so and risked a relapse of his mental illness.

Had that been the case, it would have been an important factor to weigh in the balance. Although there were many understandable reasons why the respondent may not have sued earlier (he was worried about possible repercussions if the hospital did not think he was taking responsibility for his actions, he had concerns about his family’s well-being, he did not believe he had the necessary expert evidence, and bringing a lawsuit is stressful, etc.), none of them met the test of incapacity.

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Lisa C. Munro, Q.Arb

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