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September 2020

The Court exercises its "Fact Finding Powers"

Case Study: Carmichael v. GSK Inc.

Howard Borlack
Howard Borlack,
Partner

Ashna Gakhar
Ashna Gakhar,
Law Student

By Howard Borlack and Ashna Gakhar

In Carmichael v. GlaxoSmithKline Inc., the Court of Appeal for Ontario explored the evidence required in rebutting the presumption of capacity to suspend the running of the limitation period. This case also highlights the circumstances under which a court will exercise its fact-finding powers pursuant to s.134 of the Courts of Justice Act, R.S.O. 1990 c. C.43 (“CJA”).

In Ontario, s.4 of the Limitations Act, 2002, (“Act”) establishes a two-year limitation period for a claimant to commence an action, which begins to run once the claim is discovered. However, there exists an exception for those claimants that are “incapable” to commence the proceeding. S.7(1)(a) of the Act suspends the running of the limitation period for such claimants that are “incapable” to commence the proceeding due to their physical, mental, or psychological condition. S.7(2) further establishes that a person is presumed to be capable of commencing a proceeding at all times unless the contrary is established.

Background Facts

On July 31, 2004, the respondent, Carmichael, who was suffering from mental illness and psychotic delusions, strangled his 11-year old son to death. At the time of the incident, Carmichael was a user of Paxil, an anti-depressant drug manufactured by GlaxoSmithKline (“GSK”). In the criminal prosecution for murder of his son, Carmichael was found to be not criminally responsible on account of mental disorder (“NCRMD”) and went under the jurisdiction of the Ontario Review Board. After receiving treatment at a psychiatric hospital, Carmichael received absolute discharge on December 2, 2009.

In 2011, Carmichael commenced an action against GSK alleging negligence in manufacturing and marketing of Paxil, which induced Carmichael's psychosis and caused him to take his son's life.

GSK brought a motion for summary judgement on the basis that the action was statute-barred as per the Act. The motion was dismissed with the finding that the limitation period only began to run when Carmichael received absolute discharge on December 2, 2009. Prior to the discharge, he was found to be incapable of commencing a proceeding due to his psychological condition pursuant to s.7(1)(a) of the Act.

Factors for Determining Capacity to Commence an Action

Although what it means to be “incapable” is not defined in the Act, indicators set out in Huang v. Braga and Hengeveld v. Ontario guide courts in determining a claimant's capability to commence an action.1

The indicators are as follows:

  • a person's ability to know or understand the minimum choices or decisions required to make them;
  • an appreciation of the consequences and effects of his or her choices or decision;
  • an appreciation of the nature of the proceedings;
  • a person's ability to choose and keep counsel;
  • a person's ability to represent him or herself;
  • a person's ability to distinguish between the relevant and irrelevant issues;
  • and, a person's mistaken beliefs regarding the law or court procedures.

... the determination of capacity requires a holistic weighing of all the evidence...

Justice Jamal of the Court of Appeal recognized that these factors are “neither necessary nor sufficient in themselves to establish incapacity.”2 Persuasive medical or psychological evidence, evidence from persons who know the claimant well, the appearance and demeanour of the claimant, the claimant's testimony, or the claimant's counsel's opinion are also helpful elements in determining capacity to commence a proceeding.3 Moreover, a claimant's ability to function on a day-to-day basis and make decisions for their daily life is not indicative of their capacity to commence a proceeding.4 On the contrary, a claimant's mental illness does not render them incapable of commencing a proceeding either.5 As such, the determination of capacity requires a holistic weighing of all the evidence on capacity in the context of the particular case.6

In this case, the Justice Jamal moved to set aside the motion judge's decision as the motion judge failed to refer to any specific evidence to support his findings. The medical report used to demonstrate Carmichael's incapability due to his psychological condition lacked assessment of the Huang v. Braga and Hengeveld v. Ontario indicators. Justice Jamal found that the motion judge misapprehended the evidence regarding Carmichael's capacity to commence a proceeding. Justice Jamal also recognized that appellate intervention is justified where the misapprehension leads to a palpable and overriding error. In this case, the misapprehension undoubtedly went to the core of the case, affecting its outcome. As a result, the Court exercised its fact-finding powers as per s.134 of the CJA to make a fresh assessment of the evidence.

The Court's Fact-Finding Powers

... courts are cautious in exercising their power ...

Although courts have the authority to draw inferences of fact from the evidence where such an inference would not be inconsistent with a finding that has not been set aside as per s.134(4)(a), courts are cautious in exercising their power.7 Generally, appellate courts will refrain from making such fact-findings if it requires the court to assess the credibility or if the evidentiary basis needed to draw the necessary inferences is inadequately developed in the record at first instance.8 However, consistent with the decision in Hryniak v. Mauldin, Justice Jamal held that in times when the “appellate court finds 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.”9

In this case, the Court exercised its fact-finding powers under s.134 for five reasons.

  1. The appeal did not raise questions of credibility, but rather depended principally 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.

Conclusion and Takeaways

Justice Jamal's assessment of the Huang v. Braga and Hengeveld v. Ontario indicators and weighing of all the relevant considerations led to the finding that Carmichael failed to prove his incapability of commencing a proceeding due to a psychological condition prior to December 2, 2009. As a result, the Court granted GSK summary judgment on the basis that the action was statute-barred as per the Act.

This case provides further guidance when an appellate court will exercise its fact-finding powers in a case involving issues of fact and law. Additionally, this case emphasizes the willingness of courts to enforce limitation periods. It provides insight into situations where claimants will not be successful in bringing forward proceedings against defendants by using insufficient evidence to prove lack of capability. Finally, this case also highlights the holistic assessment of various factors courts will consider in determining a claimant's capacity to commence a proceeding.


  1. Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, at para 70.
  2. Ibid. at para 96.
  3. Costantino v. Costantino, 2016 ONSC 7279, at para 58.
  4. Bisoukis v. Brampton (City) (1999), 46 O.R. (3d) 417 (C.A.), at para 106.
  5. Ibid.
  6. Carmichael, supra note 1 at para 96.
  7. Ibid. at para 130.
  8. Ibid.
  9. Ibid. at para 132.

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