In July of 2020, the Court of Appeal for Ontario released its decision in Carmichael vs. GlaxoSmithKline Inc. In this decision the Court discussed s. 7(1)(a) of the Limitation Act (“Act”) which deals with capacity and the circumstances in which the presumption of psychological capacity will be found to have been rebutted.

Section 7(1)(a) states that the basic 2-year limitation period set out at section 4 of the Act does not run during any time in which a person with a claim is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition.

The facts of the case are as follows:

In July of 2004, the Plaintiff David Carmichael, strangled his 11-year-old son to death. At the time, Mr. Carmichael was suffering from mental illness, psychotic delusions and was taking Paxil. The Defendant, GlaxoSmithKline Inc. was the manufacturer of Paxil. Mr. Carmichael was charged with murder, but the Court found him not criminally responsible due to his mental illness. In May of 2007, Mr. Carmichael was declared mentally competent and on December 2, 2009 he was granted an absolute discharge.

On October 5, 2011, more than 7 years after he killed his son, Mr. Carmichael sued GlaxoSmithKline Inc. for damages. The action was commenced less than two years from the date when Mr. Carmichael received his absolute discharge.

GlaxoSmithKline Inc. brought a motion for summary judgment on the basis that the action was statute-barred. The Judge on the motion dismissed the motion, holding that in accordance with s. 7(1)(a), Mr. Carmichael was incapable of commencing a proceeding due to his mental illness until he received the absolute discharge on December 2, 2009.

GlaxoSmithKline Inc. appealed the decision.

The issue on the appeal was the interpretation of and appropriate approach to s. 7(1)(a) of the Limitations Act. Ultimately, the Court of Appeal allowed GlaxoSmithKline Inc.’s appeal and found that Mr. Carmichael was not incapable of commencing the action prior to receipt of his absolute discharge.

This case provides guidance to counsel on the factors the Court will consider in determining capacity to commence an action.

As part of its decision the Court of Appeal clarified that s. 7(1)(a) of the Act requires proof that a person be incapable of commencing a proceeding and that the reason for the incapacity is the person’s physical, mental or psychological condition.

There is a presumption under s.7(2) of the Act that a person is capable of commencing a proceeding, and it is the Plaintiff who has the burden of proving that he/she was not capable.

The Court also clarified that s 7(1)(a) focuses only on the person’s incapacity to pursue the claim at issue and they must show they lacked capacity for this specific purpose. A person must show that they were unable to make the complex decisions required to commence a lawsuit including obtaining advise about whether they have a claim, the costs of proceeding, the potential recovery, and the potential exposure for costs if they lose.

Medical evidence will usually be required to prove a person lacked capacity. Other relevant evidence may also include evidence from people who know the plaintiff well, evidence as to the persons ability to commence other civil proceedings, and evidence of ability to perform other complex tasks like travel, instruct counsel, swear affidavits and make decisions affecting legal rights.

The Court reiterated that the following factors which were identified in prior Superior Court decisions, are helpful indicators of capacity:

  1. a person’s ability to understand the minimum choices or decisions required to make them;
  2. an appreciation of the consequences and effects of his or her choices or decisions;
  3. an appreciation of the nature of the proceedings;
  4. a person’s ability to choose and keep counsel;
  5. a person’s ability to represent him or herself;
  6. a person’s ability to distinguish between the relevant and irrelevant issues; and,
  7. a person’s mistaken beliefs regarding the law or court procedures.
  8. Lastly, the Court explained that the physical, mental or psychological condition must be the cause for the incapacity. The incapacity cannot arise from other sources such as lack of sophistication, education, or cultural differences.

    In this case the Court ultimately found that there were many objective indications that Mr. Carmichael had the capacity to sue GlaxoSmithKline Inc. prior to the granting of the absolute discharge. This evidence included his ability to consult and work with lawyers during the intervening years, and the fact that he could write and speak publicly about the circumstances of his son’s death.

    This case should be a lesson to lawyers to be sure and look at the complete factual history when attempting to rebut the presumption of capacity to commence an action.

    Please do not hesitate to contact me for more information on topics covered in this post.

    Teena Belland

    Associate – Civil Litigation, Construction and Personal Injury Law Groups

    Disclaimer: This article is provided as an information resource. This article should not be relied upon to make decisions and is not intended to replace advice from a qualified legal professional. In all cases, contact your legal professional for advice on any matter referenced in this document before making decisions. Any use of this document does not constitute a lawyer-client relationship. Please note that this information is current only to the date of posting. The law is constantly changing and always evolving.


Fax: 613-728-9866
510-1600 Carling Avenue
Ottawa, Ontario
K1Z 0A1


Toll-Free: 1-888-799-8057
340 Second Street East
Cornwall, Ontario
K6H 1Y9


Toll-Free: 1-888-799-8057
556 O’Connor Drive
Kingston, Ontario
K7P 1N3

North Bay

Toll-Free: 1-888-799-8057