The appellant municipality appealed a trial judgment in a sidewalk slip-and-fall action.
The court held that s. 47 of the Limitations Act applies to the seven-day notice requirement in s. 284(5) of the Municipal Act, but only where the plaintiff demonstrates actual incapacity amounting to being of unsound mind.
A debilitating condition, pain, medication, or failure to turn one's mind to legal rights is insufficient absent proof that the plaintiff lacked the capacity to consider, investigate, understand advice about, and direct steps to protect the claim.
Although the trial judge's findings on gross negligence and the request to admit were not disturbed, the respondent failed to prove incapacity and the action was therefore barred for late notice.
No costs were ordered.
