Suspension Of Limitation Period Due To Incapacity

Published date24 July 2020
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
Law FirmRogers Partners LLP
AuthorMs Rebecca Moore

In Ontario, the time period for a claimant to commence an action is outlined in the Limitations Act, 2002, ("LA"). The 'basic limitation period' is two years from the date on which the claim was discovered. There are, however, exceptions that have been carved out for particular categories of claimants. One such commonly known example is for minors, which is set out in s.6 of the LA.

Another exception to the basic limitation period is for claimants that may fall within the definition of an 'incapable person.' As outlined in s. 7(1) of the LA, the limitation period will not begin to run during the time a person is "incapable of commencing a proceeding in respect of the claim because of his or her physical, mental, or psychological condition."

As per s.7(2) of the LA, a claimant is presumed to be capable of commencing a proceeding, unless the contrary is proven.

The interpretation of this provision, including the evidence required to rebut the presumption of capacity, was recently explored by the Court of Appeal in Carmichael v. GlaxoSmithKline Inc.1


The respondent, Mr. Carmichael, commenced an action in October 2011 as against GlaxoSmithKline Inc. (GSK). GSK was allegedly negligent in the manufacturing and marketing of the drug Paxil which reportedly induced Mr. Carmichael's psychosis, causing him murder his son in July 2004.

Mr. Carmichael was charged with the murder of his son. He was found not criminally responsible on account of mental disorder in September 2004.

Between September 2004 and October 2011 (when the civil action was commenced), the respondent attended five hearings before the Ontario Review Board, published a website and booklet, conducted media interviews, provided instructions to his lawyers including a divorce lawyer and his lawyer before the Review Board, and travelled to Texas to meet with a lawyer about potentially suing GSK.

In October 2009, Mr. Carmichael received the results of a DNA test performed by Dr. Lucire (forensic psychiatrist). He was reportedly advised that Paxil caused his psychosis. In December 2009, the Ontario Review Board granted Mr. Carmichael an absolute discharge.

Summary Judgment Motion

GSK brought a motion for summary judgment, seeking an Order that the action was statute-barred pursuant to the LA.

The motion's judge dismissed the motion, finding the limitation period had not begun to run until Mr. Carmichael received an absolute discharge from the Ontario Review Board on December 2, 2009.

Appeal - What Does Incapable Mean?

On appeal, the Court of Appeal reviewed the proper interpretation of s.7(1) of the LA, noting two key elements that must be established: that the claimant is incapable of commencing a proceeding with respect to the claim and that they are incapable because of their physical, mental or psychological condition. The burden of rebutting this presumption of capacity falls onto the claimant to prove on a balance of probabilities.2

The term 'incapable' is not defined by the LA. The Court of Appeal has, however, previously found 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 able to appreciate the reasonably foreseeable consequences of that decision: see e.g Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6 (property decisions) and 45 (personal care decisions); Health Care Consent Act, 1996 S.O. 1996, c. 2, Sched. A s. 4(1) (medical treatment); R. v Conception, 2014 SCC 60, 2014 3 S.C.R. 82, at para 22 (medical treatment)."3

Determining capacity is a low threshold, but can vary based on the decision in issue. For example, while someone may be able to manage their personal care, they may not be able to manage their personal finances.4 The capacity to instruct counsel is considered higher on the competency hierarchy.5

This question of capacity must be determined in relation to 'commencing the particular proceeding at issue.' As stated by Justice Jamal, this "implicitly recognizes that capacity can vary for different decisions."6

Factors in Determining Capacity

When determining if a claimant was incapable of a commencing the claim, this decision will be guided by the potential indicators outlined in Huang v. Braga7 and Hengeveld v. Ontario (Transportation):8

  1. a person's ability to know or understand the minimum choices or decisions required to make them;
  2. an appreciation of the consequences and effects of his or her choices or decision;
  3. an appreciation of the nature of the proceedings;
  4. a person's ability to choose and keep counsel;
  5. a person's ability...

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