Bannon v. Corporation of the City of Thunder Bay [Indexed as: Bannon v. Thunder Bay (City)]

48 O.R. (3d) 1

[2000] O.J. No. 1368

No. C30606

Court of Appeal for Ontario

Carthy, Doherty and Feldman JJ.A.

April 26, 2000

*Application for leave to appeal to the Supreme Court of Canada granted with costs March 15, 2001 (Gonthier, Binnie and Arbour JJ.). S.C.C. File No. 27985. S.C.C. Bulletin, 2001, p. 515.

Limitations -- Municipalities -- Notice -- Section 47 of Limitations Act applying to notice provisions of s. 284(5) of Municipal Act -- Plaintiff who claims to have been of "unsound mind" within s. 284(5) required to demonstrate incapacity -- Debilitating condition short of incapacity cannot be relied upon -- Plaintiff breaking leg in slip and fall on icy pavement -- Plaintiff in pain and taking strong narcotic painkillers during seven-day period following accident -- Plaintiff failing to demonstrate incapacity -- Action barred by plaintiff's failure to give notice to municipality with seven days of accident -- Limitations Act, R.S.O. 1990, c. L.15, s. 47 -- Municipal Act, R.S.O. 1990, c. M.45, s. 284(5).

The plaintiff slipped and fell on a snow-covered sidewalk on December 29, 1995. Her right leg was badly broken. She was in a great deal of pain. She remained in hospital until January 11, 1996, when she was moved to a convalescent home. She was receiving morphine every four hours from December 29 until December 31, when her medication was changed to Percocet, which, while less potent than morphine, is also an opiate and a strong analgesic. She did not give notice to the defendant city within seven days of the accident as required by s. 284(5) of the Municipal Act. Notice was given on January 16, 1996, after her brother consulted a lawyer. She commenced an action against the defendant well within the three-month limitation period in s. 284(2) of the Act. The trial judge found that the action was not barred by the plaintiff's failure to give notice within seven days as she was physically and mentally incapable of complying with the notice requirements of s. 284(5) in the seven days following the accident. He found that the defendant had failed to properly sand or clear the sidewalk on which the plaintiff fell for about a month prior to the accident and that, given the amount of snowfall during that period, the defendant's conduct amounted to gross negligence as required by s. 284(4) of the Act. He also found that, in the circumstances, the plaintiff's failure to respond to a request to admit served on her pursuant to rule 51.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 which asked her to admit the truth of the fact that she was not impaired as to her cognitive abilities within the first seven days after the accident should not be taken as a deemed admission of the facts contained in the request. The action was allowed. The defendant appealed.

Held, the appeal should be allowed.

While, technically speaking, the trial judge may have erred in holding that the plaintiff was not deemed to have admitted the truth of the facts in the request, that error was of no significance since, had he held that she was deemed to have admitted the truth of the facts, he would have exercised his discretion under rule 51.05 and allowed her to withdraw that deemed admission. It was clear at the outset of the trial that the plaintiff was not admitting the truth of the facts in the request; indeed, her mental state in the days following the accident was a central issue at the trial. There was no suggestion that the defendant was taken by surprise by her position at trial or that it was in any way prejudiced by not holding the plaintiff to her deemed admissions.

The trial judge did not err in finding that the defendant was grossly negligent in not clearing the sidewalk.

Section 47 of the Limitations Act applies to the notice requirement of s. 284(5) of the Municipal Act. The standard set by s. 47 for establishing that a person is of "unsound mind" is a high one. A plaintiff must demonstrate incapacity. A debilitating condition short of incapacity cannot be relied upon even though it makes compliance with a notice requirement or a limitation period more difficult. Nor can s. 47 be approached by asking whether the plaintiff, given his or her condition, could reasonably have been expected to give notice within the required time. A failure to advert to the need to take steps to preserve one's rights does not constitute incapacity.

A person is capable of managing his or her affairs as a reasonable person would if that person is capable of considering whether steps should be taken to protect any claim he or she might have arising out of the accident; capable of making, or directing others to make, the appropriate inquiries to determine what steps, if any, should be taken to protect those interests; capable of understanding any advice that might be received as a result of those inquiries; and capable of effectively directing that procedural steps required by the Act be taken following receipt of that advice. Unless a person can demonstrate that his or her mental condition was such that he or she lacked one or more of the capacities described above, it cannot be said that the person was of unsound mind so as to delay the operation of the notice requirement in s. 284(5) of the Act.

The evidence did not support the finding that the plaintiff was incapable of giving notice during the seven days following the accident.

APPEAL by the defendant from a judgment of Kozak J. (1998), 47 M.P.L.R. (2d) 170 (Ont. Gen. Div.) allowing an action for damages for personal injuries.

Bisoukis v. Brampton (City) (1999), 1999 3825 (ON CA), 46 O.R. (3d) 417, 180 D.L.R. (4th) 577 (C.A.), apld Other cases referred to Filip v. Waterloo (City) (1992), 1992 8652 (ON CA), 98 D.L.R. (4th) 534, 12 C.R.R. (2d) 113, 41 M.V.R. (2d) 190, 12 M.P.L.R. (2d) 113 (Ont. C.A.); Kaszyk v. Kloestra, 1976 ALTASCAD 120, [1976] 5 W.W.R. 205, 71 D.L.R. (3d) 458 (Alta. C.A); M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, 96 D.L.R. (4th) 289, 142 N.R. 321, 14 C.C.L.T. (2d) 1; Murphy v. Welsh, 1993 59 (SCC), [1993] 2 S.C.R. 1069, 14 O.R. (3d) 799n, 106 D.L.R. (4th) 404, 156 N.R. 263, 18 C.C.L.T. (2d) 101, 18 C.P.C. (3d) 137, 47 M.V.R. (2d) 1 (sub nom. Stoddard v. Watson); Novak v. Bond, 1999 685 (SCC), [1999] 1 S.C.R. 808, 63 B.C.L.R. (3d) 41, 172 D.L.R. (4th) 385, 239 N.R. 134, [1999] 8 W.W.R. 499, 45 C.C.L.T. (2d) 1, 32 C.P.C. (4th) 197; Papamonolopoulos v. Toronto (City) Board of Education (1986), 1986 2688 (ON CA), 56 O.R. (2d) 1, 16 O.A.C. 249, 30 D.L.R. (4th) 269, 38 C.C.L.T. 82, 10 C.P.C. (2d) 176 (C.A.), leave to appeal to S.C.C. refused (1987), 1987 5366 (SCC), 58 O.R. (2d) 528; Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549, 151 D.L.R. (4th) 429, 217 N.R. 371, 30 M.V.R. (3d) 41, 12 C.P.C. (4th) 255; Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] 2 All E.R. 65, [1976] Q.B. 858, [1976] 2 W.L.R. 493, 120 Sol. Jo. 216, 74 L.G.R. 355 (C.A.) Statutes referred to Limitations Act, R.S.O. 1990, c. L.15, s. 47 Municipal Act, R.S.O. 1990, c. M.45 (am. 1996, c. 32, s. 54), s. 284 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 51.02, 51.03, 51.05 Authorities referred to Ontario Law Reform Commission Report on Limitations of Actions (Department of the Attorney General, 1969), p. 81

Stephen Wojciechowski, for appellant. Danial Newton, for respondent.

The judgment of the court was delivered by

[1] DOHERTY J.A.: -- The respondent, Laura Bannon, slipped and fell on a snow-covered sidewalk in Thunder Bay at about 1:30 a.m. on December 29, 1995. She could not get up. Eventually, help arrived and Ms. Bannon was taken to the hospital. Her right leg was badly broken and she underwent surgery to repair the fracture on the evening of December 29, 1995. She remained in the hospital until January 11, 1996, when she was moved to a convalescent home.

[2] Ms. Bannon brought an action against the appellant, the Corporation of the City of Thunder Bay (the "City"), claiming that the City had failed to properly clear the ice and snow from the sidewalk and that as a result of an accumulation of ice and snow she had fallen and suffered serious injuries, including a broken leg. The issue of liability was tried before Kozak J. [See Note 1 at end of document] There were two main issues raised at trial:

-- Was Ms. Bannon's claim barred by her failure to give notice of her injury and claim to the City within seven days as required by s. 284(5) of the Municipal Act, R.S.O. 1990, c. M.45 (the "Act")?

-- If the action was not barred, had the plaintiff established that the conduct of the City amounted to gross negligence as required by s. 284(4) of the Act?

[3] In addition to these two issues, the City raised a further argument in support of its position that the action was barred by the failure to give notice. The City argued that Ms. Bannon's failure to respond to a request to admit served on her pursuant to rule 51.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, meant that she was deemed to admit the facts set out in the request. The City contended that the deemed admissions foreclosed any argument that Ms. Bannon was incapable on account of physical and mental disability of giving the notice required by s. 284(5) of the Act. The City submitted that the deemed admissions combined with the failure to give the notice within seven days necessitated the dismissal of the action.

[4] Kozak J. decided all three issues against the City [reported (1998), 47 M.P.L.R. (2d) 170]. He held that:

-- In the circumstances, the failure to respond to the request to admit should not be taken as a deemed admission of the facts contained in the request.

-- In the seven days following the accident, Ms. Bannon was physically and mentally incapable of complying with the notice requirements imposed by s. 284(5). The failure to give the notice required by that section did not, therefore, bar the action.

-- The City had failed to properly sand or clear the sidewalk on which Ms. Bannon fell for about a month prior to Ms. Bannon's accident. Given the amount of snowfall during that period (about 50 centimetres), the City's conduct amounted to gross negligence.

[5] The City challenges all three findings on appeal. I would not disturb the trial judge's conclusion with respect to the effect of the failure to respond to the request to admit or his finding of gross negligence. I would, however, allow the appeal as it relates to his finding that Ms. Bannon's failure to give notice to the City within seven days as required by s. 284(5) of the Act was not a bar to the action. In my view, Ms. Bannon's failure to give notice as required by s. 284(5) was a bar and the action must be dismissed. I will address the two issues on which I agree with Kozak J. before turning to the effect of Ms. Bannon's failure to give notice as required by s. 284(5).

The Finding of Gross Negligence

[6] Apart from the arguments arising out of Ms. Bannon's failure to give notice, the City's liability turned on whether Ms. Bannon had demonstrated that the City had not taken adequate steps to clear the sidewalk, and that its failure to do so reached the level of gross negligence. I will not review the evidence. Kozak J. did so in his reasons. He accepted Ms. Bannon's evidence that the sidewalk was snow-covered and icy. He concluded that the sidewalk had not been plowed or sanded for about a month before the accident. He held [at p. 181]:

To ignore the sidewalk in this area for such an extended period of time under the circumstances, and given its usage, can only be considered to be gross negligence on the part of the defendant.

[7] The City submits that Kozak J. failed to consider the evidence that the City had a system in place to provide for regular snow removal from sidewalks and that, according to that system, the sidewalk on which Ms. Bannon fell would have been adequately serviced. In essence, the City argues that evidence of its system was sufficient to rebut any suggestion of gross negligence, even though it had no direct or documentary evidence indicating that the sidewalk had actually been cleared.

[8] I would reject this argument. Kozak J. reviewed the evidence of the City's system. He also observed, accurately, that there was no testimony or documentary evidence indicating that the sidewalk on which Ms. Bannon fell was actually cleared in the month prior to the accident. In the absence of any such evidence, Kozak J. was not prepared to accept that the system must have functioned as the City intended it to function.

[9] The findings of fact made by Kozak J. are not unreasonable. His reasons reveal no misapprehension of the evidence. On those findings, the conclusion that the City was grossly negligent cannot be gainsaid.

The Request to Admit

[10] Prior to trial, the City served Ms. Bannon with a request to admit pursuant to rule 51.02. The request asked that she admit the truth of the following facts:

1. The facts and conclusions as set out in the report of Dr. Shulman dated April 21, 1998.

2. The Plaintiff, Laura Bannon, was not impaired as to her cognitive abilities within the entire period of the first seven days after her slip and fall which occurred during the early morning hours of December 29, 1995.

[11] The request was served more than 20 days prior to trial and no response to the request was made by counsel for Ms. Bannon. At the outset of the trial, counsel for the City took the position that as Ms. Bannon had not responded to the request, she must be taken under rule 51.03 to be deemed to have admitted the truth of the facts for the purpose of the trial.

[12] Counsel for Ms. Bannon acknowledged that no response to the request had been made, but argued that the failure to respond was not an admission and that counsel for the City knew full well that Ms. Bannon was not admitting the facts referred to in the request. With the agreement of counsel, Kozak J. reserved his ruling until the end of the trial.

[13] At the end of the trial, Kozak J. ruled that it had been made clear during the discovery process that Ms. Bannon's capacity to give the requisite notice within seven days was very much in dispute. He declined to hold that Ms. Bannon's failure to respond to the request to admit constituted a deemed admission of the facts set out in the request.

[14] Paragraph 1 of the request refers to "the facts and conclusions" set out in an expert's report prepared for the City. I have considerable doubt whether para. 1 of the request is sufficiently precise to constitute a request to admit facts under rule 51.02. I need not, however, come to any firm conclusion on this issue.

[15] Rule 51.05 provides:

51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 or an admission in a pleading may be withdrawn on consent or with leave of the court.

[16] Although Kozak J. did not speak in terms of granting leave to Ms. Bannon to withdraw a deemed admission, I am satisfied that his ruling was to the same effect. It was clear at the outset of the trial that Ms. Bannon was not admitting the truth of the facts in the request, particularly those relating to her mental state in the seven days following the accident. Indeed, her mental state in the days following the accident was a central issue at the trial. Counsel for the City did not suggest that the City was taken by surprise by her position at trial or that he relied on the deemed admissions in his preparation for trial. He did not suggest that the City was in any way prejudiced by not holding Ms. Bannon to her deemed admissions. In those circumstances, it would have been entirely appropriate for Kozak J. to grant leave to withdraw the deemed admission.

[17] While, technically speaking, Kozak J. may have erred in holding that Ms. Bannon was not deemed to have admitted the truth of the facts in the request, that error was of no significance as I am satisfied that had he held that she was deemed to have admitted the truth of the facts, he would also have exercised his discretion under rule 51.05 and allowed her to withdraw that deemed admission.

The Failure to Give Notice under [s. 284(5)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m45/latest/rso-1990-c-m45.html) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m45/latest/rso-1990-c-m45.html)

[18] A person who is injured in a fall on an icy municipal sidewalk must move very quickly to preserve his or her rights against the municipality. The injured party must give written notice of the claim and injury complained of to the municipality within seven days of the accident. The injured party must also commence an action within three months from the time when the damages were sustained. The relevant provisions of the Act are set out below:

284(1) Every highway and every bridge shall be kept in repair by the corporation the council of which has jurisdiction over it or upon which the duty of repairing it is imposed by this Act and, in case of default, the corporation, subject to the Negligence Act, is liable for all damages sustained by any person by reason of such default.

(2) No action shall be brought against a corporation for the recovery of damages occasioned by such default, whether the want of repair was the result of nonfeasance or misfeasance, after the expiration of three months from the time when the damages were sustained.

(5) No action shall be brought for the recovery of the damages mentioned in subsection (1) unless notice in writing of the claim and of the injury complained of has been served upon or sent by registered mail to the head or the clerk of the corporation, in the case of a county or township within ten days, and in the case of an urban municipality within seven days, after the happening of the injury, nor unless, where the claim is against two or more corporations jointly liable for the repair of the highway or bridge, the prescribed notice was given to each of them within the prescribed time.

(6) In the case of the death of the person injured, failure to give notice is not a bar to the action and, except where the injury was caused by snow or ice upon a sidewalk, failure to give or insufficiency of the notice is not a bar to the action, if the court or judge before whom the action is tried is of the opinion that the corporation in its defence was not prejudiced by the want or insufficiency of the notice and that to bar the action would be an injustice, even if reasonable excuse for the want or insufficiency of the notice is not established.

(Emphasis added)

[19] Ms. Bannon did not give notice to the City within seven days. Although no notice was filed at trial, it would appear that notice was given on January 16, 1996 after Ms. Bannon's brother consulted a lawyer. The action was commenced on February 28, 1996, well within the three month limitation period set out in s. 284(2) of the Act.

[20] Kozak J., relying on Filip v. Waterloo (City) (1992), 1992 8652 (ON CA), 98 D.L.R. (4th) 534, 12 M.P.L.R. (2d) 113 (Ont. C.A.), held that failure to give notice did not bar the action if the injured party was physically and mentally incapable of giving the required notice. He said [at p. 180]:

Upon reviewing all of the evidence concerning the treatment and condition during the plaintiff's first seven days at the hospital it is the finding of this court that the plaintiff was physically and mentally incapable of complying with the notice requirements imposed under section 284(5) and the herein action is therefore not statute barred. The defendant is hereby estopped from relying on the said section.

[21] On appeal, counsel for the City accepts that in extreme cases (e.g., a coma), incapacity will exempt a plaintiff from complying with the notice requirement. The City contends that Ms. Bannon's condition did not approach the level of incapacity required by this narrow exception to the notice requirement. It further argues that the trial judge's finding of incapacity was based on a misappreciation of relevant evidence and a failure to consider other relevant evidence.

[22] The notice requirement in s. 284(5) is not, strictly speaking, a limitation period. The limitation period (three months) is found in s. 284(2) of the Act. The notice requirement is, however, akin to a limitation period in that failure to comply with the section constitutes a bar to the action just as failure to commence the action within the limitation period constitutes a bar. The notice requirement also promotes the same interests served by limitation periods. It prompts the plaintiff to pursue the claim diligently, affords the defendant an opportunity to make timely investigation of the incident giving rise to the action and allows the defendant to proceed with its affairs secure in the knowledge that it will not face claims for which notice was not given as required by the statute: see Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at pp. 562-64, 151 D.L.R. (4th) 429. A statutory provision requiring notice of a claim has been aptly described as "a limitation period within a limitation period". [See Note 2 at end of document]

[23] Based on the statutory framework, I think that s. 284(2) and (5) should be read together as constituting the applicable limitation period. Read together, they establish the period within which Ms. Bannon's action against the City had to be commenced. The first step, the giving of notice, had to be taken within seven days, and the second step, the formal commencement of the action, had to be taken within three months. In effect, s. 284(5) of the Act imposed a seven-day limitation on the commencement of Ms. Bannon's action.

[24] Limitation periods are creatures of statute. Short limitation periods evince a legislative intention to vigorously promote those interests associated with the creation of limitation periods, even at the expense of denying recovery to plaintiffs who have valid claims and have moved with reasonable dispatch to prosecute those claims. The Supreme Court of Canada has, however, made it clear in a number of recent decisions that when interpreting statutory provisions which create limitation periods, even short ones, the court cannot ignore the legitimate interests of potential plaintiffs: M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, 96 D.L.R. (4th) 289; Murphy v. Welsh, 1993 59 (SCC), [1993] 2 S.C.R. 1069, 106 D.L.R. (4th) 404; Peixeiro v. Haberman, supra; Novak v. Bond, 1999 685 (SCC), [1999] 1 S.C.R. 808, 172 D.L.R. (4th) 385. Most recently, in Novak v. Bond, supra, at pp. 840-41 S.C.R., p. 409 D.L.R., McLachlin J. said:

Contemporary limitations statutes thus seek to balance conventional rationales oriented towards the protection of the defendant -- certainty, evidentiary, and diligence -- with the need to treat plaintiffs fairly, having regard to their specific circumstances. As Major J. put it in Murphy, supra, "[a] limitations scheme must attempt to balance the interests of both sides" . . .

[25] The need to "balance the interests of both sides" has led the court to impose a reasonable discoverability requirement on the running of limitation periods, Novak v. Bond, supra, at p. 841 S.C.R., p. 409 D.L.R., and to hold that the plaintiff's legal incapacity, apart from any statutory enactment, postpones the operation of a limitation period: Peixeiro v. Haberman, supra, at pp. 565-66; Sparham-Souter v. Town and Country Developments (Essex) Ltd., [1976] Q.B. 858 at p. 867, [1976] 2 All E.R. 65 (C.A.).

[26] The legislature has also recognized the unfairness of running a limitation period against a plaintiff who is incapable of commencing an action. Section 47 of the Limitations Act, R.S.O. 1990, c. L.15 reads:

47. Where a person entitled to bring an action mentioned in section 45 or 46 is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind.

[27] Section 47 speaks to incapacity flowing from age or, broadly speaking, mental infirmity. The section is triggered if the incapacity exists when the cause of action accrues [See Note 3 at end of document] and it delays the operation of the period within which the action may be brought until the plaintiff is no longer a minor and is of "sound mind." The notice requirement in s. 284(5) is a prerequisite to the commencement of an action like this one. As indicated above, its effect is to impose a limitation on the period within which an action can be commenced. In my view, if s. 47 applies, it serves to delay the running of the seven-day period if the plaintiff is a minor or is of unsound mind at the time the cause of action accrued.

[28] The applicability of s. 47 to limitation periods not found in the Limitations Act was at one time a matter of some debate. In Papamonolopoulos v. Toronto (City) Board of Education (1986), 1986 2688 (ON CA), 56 O.R. (2d) 1 at p. 9, 30 D.L.R. (4th) 269 (C.A.), leave to appeal to S.C.C. refused (1987), 1987 5366 (SCC), 58 O.R. (2d) 528, this court settled that controversy and held that s. 47 applied to limitation periods found in other statutes unless clear wording in the other statute precludes the application of s. 47: see also, Murphy v. Welsh, supra, at pp. 1078-81.

[29] Section 47 has been held to apply to the three-month limitation period in s. 284(2) of the Act: Bisoukis v. Brampton (City) (1999), 1999 3825 (ON CA), 46 O.R. (3d) 417 at p. 430, 180 D.L.R. (4th) 577 at pp. 590-91 (C.A.), application for leave to appeal filed February 4, 2000. It would be anomalous if s. 47 did not also apply to the notice requirement in s. 284(5) of the Act. If s. 47 did not apply to the notice provision, persons who were excused on account of incapacity from commencing their action within the three-month limitation period could still find their action barred by failure to give notice even if, as would usually be the case, it was the same incapacity that rendered them incapable of giving notice.

[30] I find nothing in the language of s. 284(5) or (6) which precludes the application of s. 47 of the Limitations Act to the notice requirement in s. 284(5). Section 284(6) speaks to two specific circumstances in which failure to give notice is not a bar to an action under s. 284. Only one of those exceptions (death) applies to actions resulting from a slip and fall on an icy sidewalk. Neither exception in s. 284(6) addresses the capacity of the injured party to give the appropriate notice. There is nothing inconsistent between a statutory provision which exempts a party from giving notice in specified circumstances (death, absence of prejudice to the municipality) and the more general language of s. 47 which delays the running of a limitation period while a person is incapable on account of age or mental infirmity of commencing the action. I would hold that s. 47 applies to the notice requirement in s. 284(5).

[31] It was Ms. Bannon's position that her pain and the high doses of pain medication she was receiving combined to render her incapable of turning her mind to the need to protect her legal interests connected to the accident, and incapable of taking the steps necessary to protect those interests. Put in the rather archaic language of s. 47 of the Limitations Act, Ms. Bannon argued that she was of "unsound mind" from the time of the accident until several days after the accident. If she was of unsound mind, s. 47 delayed the running of the seven-day notice period until she became of sound mind.

[32] The meaning to be given to the phrase "unsound mind" in s. 47 of the Limitations Act was considered recently by this court in Bisoukis v. Brampton (City), supra. Borins J.A. said, at p. 433 O.R., pp. 593-94 D.L.R.:

. . . a person is of unsound mind within the meaning of s. 47 when he or she, by reason of mental illness, is incapable of managing his or her affairs as a reasonable person would do in relation to the incident, or event, which entitles the person to bring an action.

(Emphasis added)

[33] Bisoukis was a case in which the plaintiff alleged that she was severely depressed as a result of her accident and was, therefore, incapable of commencing the action. Borins J.A., understandably, spoke in terms of mental illness. I think, however, the same approach should be applied where the alleged mental incapacity is attributable to some other cause such as trauma or medication. It is the fact of incapacity and not the cause of that incapacity which triggers s. 47.

[34] The standard set by s. 47 for establishing that a person is of "unsound mind" is a high one. A plaintiff must demonstrate incapacity. A debilitating condition short of incapacity cannot be relied on even though it makes compliance with a notice requirement or a limitation period more difficult. Nor can s. 47 be approached by asking whether the plaintiff, given his or her condition, could reasonably have been expected to give notice within the required time. While it might be eminently reasonable to conclude that an injured plaintiff was preoccupied with matters other than serving notice to the City within seven days of an accident, that preoccupation cannot be equated with incapacity for the purposes of s. 47 of the Limitations Act. Finally, one must also distinguish between incapacity and a simple failure to address one's mind to the steps, if any, which should be taken to protect one's legal interests after an accident. Again, it is understandable that an injured person would be primarily concerned with his or her immediate well-being in the days following an accident and not with commencing legal action. Although understandable, a failure to advert to the need to take steps to preserve one's rights does not constitute incapacity.

[35] In this case, the operation of the seven-day notice period could be delayed only if Ms. Bannon showed that she was incapable of taking the necessary steps required to give notice to the City. Applying the test set out in Bisoukis v. Brampton, supra, I would hold that a person is capable of managing his or her affairs as a reasonable person would if that person is:

-- capable of considering whether steps should be taken to protect any claim he or she might have arising out of the accident;

-- capable of making, or directing others to make, the appropriate inquiries to determine what steps, if any, should be taken to protect those interests;

-- capable of understanding any advice that might be received as a result of those inquiries; and

-- capable of effectively directing that procedural steps required by the Act be taken following receipt of that advice.

[36] In my view, unless a person can demonstrate that his or her mental condition was such that he or she lacked one or more of the capacities described above, it cannot be said that the person was of unsound mind so as to delay the operation of the notice requirement in s. 284(5) of the Act.

[37] Ms. Bannon gave notice on January 16, 1996. If she was mentally incapable of giving notice prior to January 10, 1996, she complied with the notice requirement by giving notice on January 16. However, if she had the requisite capacity at any time on or before January 9, her notice was not timely, her action was barred, and the trial judge had no power to relieve her of the obligation of giving notice.

[38] As indicated earlier in these reasons, Kozak J. found that Ms. Bannon was "physically and mentally incapable" of complying with the notice requirement. He said that this incapacity "estopped" the City from relying on the notice requirement. Kozak J. did not refer to s. 47 of the Limitations Act. He appeared to have regarded mental incapacity as a judge- made exception to the notice requirement.

[39] Kozak J. also addressed the question of Ms. Bannon's capacity exclusively by reference to her condition in the seven days immediately following the accident. He failed to consider, as the closing words of s. 47 required him to do, whether, even if Ms. Bannon lacked the requisite capacity during the first seven days following the accident, she had the necessary capacity on January 6, 7, 8 or 9. This distinction is potentially significant. Ms. Bannon's condition was improving throughout her stay in the hospital. She was switched to a less potent pain medication on January 9 and she was transferred to a convalescent hospital on January 11. On the evidence adduced in this case, even if Ms. Bannon was incapable of giving notice in the first seven days, it does not follow that she was also incapable of giving notice in the next four days. Consequently, even if Kozak J.'s finding of incapacity is sustained on appeal, it leaves unanswered the question of whether Ms. Bannon gave timely notice. Were I to hold that this court should not interfere with Kozak J.'s finding that she was incapable of giving notice during the first seven days, I would still allow the appeal to the extent of directing a new trial on the issue of whether, considering the operation of s. 47 of the Limitations Act, Ms. Bannon gave timely notice to the City.

[40] Counsel for the City does, however, challenge the finding that Ms. Bannon was incapable of giving notice during the seven days following the accident. In doing so, he acknowledges the deference owed by this court to a finding of fact made at trial, but contends that this is one of those relatively rare cases where the trial judge's reasons reveal error which warrant reversal of a finding of fact.

[41] Kozak J. did not have the benefit of this court's judgment in Bisoukis v. Brampton (City), supra, and did not expressly set out the standard he applied in determining whether Ms. Bannon was capable of giving notice. It is clear, however, from a reading of the entirety of the reasons, that he applied a standard which required actual incapacity on account of physical and mental condition. I think the approach taken by Kozak J. was consistent with that adopted by this court in Bisoukis v. Brampton (City), supra.

[42] Although I am satisfied that Kozak J. applied the proper test, the evidence cannot support the finding that Ms. Bannon was incapable of giving notice during the seven days following the accident. I will first review the pertinent evidence and then return to the reasons of Kozak J.

[43] Ms. Bannon was in a great deal of pain when she arrived at the hospital on December 29, 1995. A broken femur is one of the most painful injuries a person can suffer. She received morphine intravenously while awaiting surgery. Dr. Remus operated on Ms. Bannon's leg at about 10:00 p.m. on December 29. He ordered that she receive 15 to 20 milligrams of morphine by injection every four hours as needed postoperatively. That order remained in effect until the early evening of December 31, 1995 when Dr. Remus changed Ms. Bannon's pain medication to a drug called Percocet. She was to receive one tablet of Percocet every three to four hours as needed. She received four tablets a day between December 31 and January 8. On January 9, her medication was changed to a drug called Leritine, a pain analgesic which was less potent than Percocet, but more potent than Tylenol 3.

[44] The level of morphine administered to Ms. Bannon up to December 31 was at the high end of the acceptable range for a patient in Ms. Bannon's position. Typically, patients receiving the level of morphine administered to Ms. Bannon would be extremely relaxed and drowsy. Their activities would be limited to sitting up in bed and eating their meals with some help. They would be inclined to dose off.

[45] While morphine taken in the quantities administered to Ms. Bannon would impair cognitive functions to some degree, the extent of that impairment would vary from person to person. In extreme cases, a condition known as delirium may develop. Delirium is described as an acute confused stage. A patient in a state of delirium becomes confused and lacks a clear awareness of his or her environment. The patient cannot follow a conversation, is easily distracted and sometimes becomes extremely agitated.

[46] Percocet is also an opiate and an analgesic. While less potent than morphine, it is a strong drug and can impair a person's cognitive functioning. As with morphine, the effect of Percocet varies from individual to individual.

[47] Dr. Remus, who operated on Ms. Bannon, testified for her. He had no independent recollection of her condition following surgery and had to rely entirely on his notes. He was asked about the effect of the narcotics given to Ms. Bannon on her ability to address issues such as any claim she might have against the City. He testified that patients' responses to morphine and Percocet "vary dramatically" and that he would want to look at the hospital record and, in particular, the nurse's notes for indications of how Ms. Bannon reacted to those narcotics. Dr. Remus was specifically asked whether he could say how Ms. Bannon reacted to the Percocet and whether it had any effect on her cognitive functioning. He responded, "No I can't tell you. I would have to rely on the nurse's notes."

[48] As I read his evidence, Dr. Remus never did look at the nurses' notes. The City introduced those records as part of its case.

[49] Dr. Remus was also asked about Ms. Bannon's ability to contemplate legal action. He said:

I -- all I can sort of say, I wasn't aware that there was anything -- she never spoke to me about it so I really wasn't aware that there was anything -- anything going on at that stage . . .

In other words, she didn't mention to me that she was contemplating any action or asked my advice or anything like that so . . .

. . . I wouldn't have thought that for about -- for about a week that she would with that type of trauma. A fractured -- a fractured femur is a significant trauma as compared to a broken wrist or a broken hand or a foot. Patients that I have seen depending on their age and their general health, I mean, some people are bedridden for a week and some are longer of course in more elderly patients so -- I would sort of think that after a week she may. Certainly for the first three, four, five days I don't think so. I think she was -- she wasn't doing very much of anything other than taking medication for pain relief.

(Emphasis added)

[50] This answer would not permit the finding that Ms. Bannon was incapable on account of the medication and her pain of providing the necessary notice throughout the seven days following the accident. Counsel for Ms. Bannon, without objection, then referred the doctor to a letter he had provided to counsel prior to trial in which he said that Ms. Bannon was not able to give notice to the City within the first seven days of her accident. The following exchange between Dr. Remus and counsel for Ms. Bannon followed:

Q. And it's also your evidence that due to the type of injury, meaning the femur is bust because of the trauma associated with that and the amount of medication, that it's simply not feasible that she would have been in a position to instruct Counsel to commence an action?

A. Within a certain period of time?

Q. Within seven days.

A. I would have thought that with the amount of medication and the type of trauma that she had that it would probably be improbable.

Q. So as per your letter dated July, it's not possible that she should -- that she could have instructed Counsel. Correct?

A. I'm sorry. Within the seven days?

Q. Right.

A. I would have thought that it was unlikely.

(Emphasis added)

[51] In cross-examination, counsel for the City chose to focus on Ms. Bannon's mental state after she started to take Percocet (the evening of December 31). He suggested to Dr. Remus that it was entirely possible that Ms. Bannon would be perfectly capable of functioning from a cognitive point of view while taking Percocet. Dr. Remus replied that Ms. Bannon's level of cognitive functioning would depend on how much relief she was getting for her pain. He said:

-- I don't know what her response is. I would actually, you know, have to sort of take a look at the nurse's notes. Persons having Percocet every three or four hours I don't -- I don't think that they can carry on a -- they can maybe give some instructions but I mean it's how much, what degree of instructions they can give and I don't -- I can't -- I don't even want to comment on that.

(Emphasis added)

[52] After counsel had completed their questioning, Kozak J. questioned Dr. Remus and focused directly on the crucial issue:

THE COURT: The issue that we are dealing with at this particular point in time is given the nature of the injury that took place, given the hospitalization that ensued, given the medication that was prescribed, what this Court has to ascertain is whether or not under those circumstances she had the ability to rationalize the type of situation where someone who felt that she may or was wronged would have the ability to weigh those circumstances and make some contact from her hospital room whether it be to members of the family or to a lawyer to say, hey look, I feel I have been wronged, I want somebody to tell me whether or not I have got a cause of action. Within that time frame of seven days, given these circumstances, this type of rationalize in your view is it there or was it not?

THE WITNESS: It is a very painful condition, Your Honour, and I think it varies from -- depending on the patients general health and also the age of the patient. I would have thought that for the first five days, six days, seven days it's a very painful condition. When you give -- when you give analgesics like Morphine it deadens the pain but a lot of cases what it does is it sort of deadens the effect of the individual so I think we are looking at a number of conditions. We're looking at conditions where also the patient is extremely concerned about herself. So we have pain and concern about her future. I think -- so there's lots of questions that a patient brings up. The first five days, I don't think so. I mean I've seen people that they won't even move from bed and all they do is they get pain medication up to a week. I think after a week I don't think there's a problem, Your Honour, but I think the real thing is that up to five days you don't do anything. It's just too painful . I can't imagine a person getting up and running to a phone with that injury. Now, if it was a fractured wrist or a fractured hand or a foot or something like that it's different but, I mean, this is -- this is one of the most painful bones that could be broken and one of the more serious surgical procedures that you perform, one of the more prolonged ones and one of the procedures that takes the longest to get better. So as I sort of said, it's a difficult thing to respond to. I would sort of say that for the first five or six days that a person doesn't do anything very much but that's why I find it hard to believe that within three or four days you would be picking up the phone and sort of phoning a lawyer. I don't -- I don't think so. It's just too -- it's too much pain and discomfort.

(Emphasis added)

[53] Dr. Remus' evidence is of limited value. He acknowledged that patients' reactions to strong analgesics vary widely. He had no independent recollection of Ms. Bannon and did not refer to the very documents which he said would assist him in determining how Ms. Bannon reacted to the drugs she received. Even setting aside those limitations, I do not read Dr. Remus' evidence as supporting the conclusion that Ms. Bannon was incapable of giving the requisite notice for the entire seven days following the accident.

[54] Ms. Bannon also relied on the evidence of her brother, Gordon McPherson. He testified that he visited Ms. Bannon in the hospital about a week to ten days after the accident. She told him that she had slipped on the sidewalk and broken her leg. She recalled the street on which the accident occurred. Mr. McPherson told his sister that she should talk to a lawyer to see if the City was liable for her injuries. According to Mr. McPherson, his sister was in considerable pain and did not seem to understand what he was saying to her. Mr. McPherson said:

. . . it took her a few minutes to sink in to actually what I actually said. I told her that I'd contact my attorney which I did and my attorney advised me to contact your firm which I contacted Mr. Watkins and I explained the situation.

[55] Ms. Bannon testified that the conversation with her brother was some time later than seven to ten days after the accident. [See Note 4 at end of document] She recalled that her brother mentioned to her that she should sue the City. Ms. Bannon asked him how she should go about doing that and her brother told her that he would get a lawyer for her.

[56] Ms. Bannon testified that she had little recollection of what happened or what she did while she was in the hospital. She said that she was in a great deal of pain and was "still in my own little world". She did recall several visits from members of her family in the days following the accident. She recalled telling them what had happened to her, but did not discuss the possibility of suing the City with any of her relatives. According to her, she was not alert and she felt groggy.

[57] Ms. Bannon also testified that she could not recall what effect the Percocet had on her. In her examination-for- discovery conducted shortly before the trial, she had told counsel that Percocet had no effect on her.

[58] Ms. Bannon's cross-examination concluded with the following questions and answers:

Q. Isn't it true, Mrs. Bannon, that the reason why you had not given notice to the City of your slip and fall until January 16, 1996, was that you simply hadn't put your mind to it?

A. I didn't put my mind to it because I was too busy trying to get myself better.

Q. Had you known that you were required to give notice to the City within seven days of your slip and fall, isn't it true that you could have given that notice had you known?

A. If I had known about it, yes.

Q. You certainly could have told your brother-in-law, your son or your daughter to give notice to the City of your slip and fall had you thought about it?

A. No. I wouldn't have thought about it because it never occurred to me to think about it. My mind was not there.

Q. If you had known that you had to give notice to the City within seven days of your slip and fall you could have asked your son or your daughter or your brother-in-law to give that notice to the City, could you not have?

A. I didn't know nothing about it.

Q. But if you had known?

A. If I had known I probably would have.

Q. And you could have?

A. Yah.

[59] These answers strongly suggest that Ms. Bannon simply did not turn her mind to what steps, if any, she should take to preserve her claim against the City.

[60] The City called Dr. Shulman, a psychiatrist with expertise in the effects of narcotics. He had never seen Ms. Bannon and his evidence was of limited assistance. He did, however, testify that he had reviewed the hospital records and that those records gave no indication that Ms. Bannon ever suffered from delirium. He also testified that a person like Ms. Bannon, who had taken significant amounts of Tylenol for a long period of time, [See Note 5 at end of document] would develop a limited tolerance to morphine and Percocet. The effect of those drugs on a person who had developed that tolerance would be somewhat diminished.

[61] The City also called Mr. Lepinsky, one of the nurses who had attended to Ms. Bannon while she was in the hospital. Mr. Lepinsky could not recall Ms. Bannon. Counsel took Mr. Lepinsky through the hospital records which contained various references to Ms. Bannon's neurological, psychological and emotional condition while in the hospital. None of the references suggested that she was disoriented, confused or unresponsive. Mr. Lepinsky indicated that there were several places in the records where one would expect the nurses to make the appropriate notation had they observed any confusion, unresponsiveness or disorientation.

[62] Mr. Lepinsky also testified that if a patient who was receiving morphine or Percocet appeared to be constantly groggy, difficult to arouse, or was having problems speaking properly, the nursing staff would consult with the treating physician before continuing the medication. There was nothing in the hospital records to suggest that Ms. Bannon manifested these symptoms or that her treating physician was ever consulted about the level of her pain medication.

[63] According to the hospital chart, Ms. Bannon remained in bed until December 31. On December 31 she sat up in a chair with assistance. Between January 1 and 7, she was up and moving about with assistance. A note from the physiotherapist indicated that on January 3, she was out of bed and using a walker without assistance. By January 7, Ms. Bannon was up and moving about without assistance.

[64] The hospital records are not determinative of Ms. Bannon's capacity to give the requisite notice. Their value lies in what they do not reveal. There is nothing in those records to support Ms. Bannon's claim that she was incapable of giving the requisite notice. Ms. Bannon, of course, had the onus on this issue.

[65] I return now to the trial judge's reasons. In concluding that Ms. Bannon was incapable of giving notice, the trial judge relied on the following findings:

-- Ms. Bannon had a "low tolerance" for morphine and Percocet;

-- Ms. Bannon was "virtually unconscious" for the first three to five days following the accident;

-- even after Ms. Bannon began taking Percocet, she was in "a state of extreme drowsiness in which all she wanted to do is sleep"; and

-- her brother, Mr. McPherson, found her to be "in an improper mental state to seek legal counsel because of the effects of her trauma and medication".

[66] The finding that Ms. Bannon had a low tolerance for morphine and Percocet is not only unsupported by the evidence, but is contrary to the only evidence given on the issue. As a regular user of Tylenol, she may have developed some tolerance to the drugs.

[67] The finding that Ms. Bannon was virtually unconscious for the first three to five days is not supported by the evidence. She was receiving visitors, eating, getting up to go to the bathroom and was also out of bed and moving around with some assistance by January 1.

[68] The finding that Ms. Bannon was extremely drowsy and only wanted to sleep after her medication was changed to Percocet is also an unreasonable finding. The only evidence which offers any support for that conclusion is the evidence of Ms. Bannon. In my view, however, it is unreasonable to rely on that evidence given her testimony that she could not recall what effect, if any, Percocet had on her and her evidence on her examination-for-discovery that Percocet had no effect on her.

[69] Finally, the finding that Mr. McPherson concluded that the plaintiff was in an improper mental state to seek legal advice stretches his evidence beyond reasonable bounds. Mr. McPherson said only that it took his sister a few minutes to appreciate what he had said to her. On her own evidence, she appreciated what her brother was saying as demonstrated by her inquiry as to how she would go about suing the City.

[70] I am driven to the conclusion that the findings made by Kozak J. on which his conclusion that Ms. Bannon was incapable of giving notice is based, are contrary to or not supported by the evidence. My review of the evidence leads me to these conclusions:

-- Dr. Remus' evidence could not support the finding that Ms. Bannon was incapable of giving the requisite notice. At its highest, it could support that finding for the first five days following the accident. Even then, it is speculative.

-- The hospital records provide no support for Ms. Bannon's position.

-- Ms. Bannon's evidence is not particularly helpful, and it is manifestly unreliable as it relates to the effect of Percocet on her.

-- Mr. McPherson's evidence demonstrates that Ms. Bannon had some difficulty in comprehending the need to seek legal advice, but does not establish incapacity.

[71] I would hold that Ms. Bannon failed to discharge the onus of demonstrating that she was incapable, on account of her mental condition, of giving the requisite notice. It follows that her action was barred.

Conclusion

[72] I must conclude that Ms. Bannon's action should be dismissed. This result is most unsatisfactory. It would be unreasonable to expect Ms. Bannon to have acted any sooner than she did. Nor is there any reason to believe that the City would have been in a better position to defend against the action had it received notice ten days earlier than it did. Unfortunately, as the law now stands, Ms. Bannon had the misfortune of falling on an icy sidewalk and the City is therefore able to avoid the consequence of its gross negligence by reliance on a notice requirement which can only be described as draconian. This court has called for legislative action to prevent injustices caused by notice provisions like that found in s. 284(5) of the Act: e.g., see Filip v. Waterloo, supra, at p. 540. At a bare minimum, a person who finds him or herself in the position of Ms. Bannon should have access to the limited exception to the notice requirement available in s. 284(6) to those whose inju ry is not caused by snow or ice on a sidewalk.

[73] I would allow the appeal, set aside the judgment of Kozak J., and order that the action be dismissed. I would not reward the City's gross negligence by ordering costs against Ms. Bannon. I would direct that there be no costs either at trial or on appeal.

Appeal allowed.

Notes

Note 1: Kozak J. ordered an assessment of damages before him on a later date.

Note 2: Ontario Law Reform Commission Report on Limitations of Actions (1969), Department of the Attorney General, p. 81.

Note 3: For the purposes of s. 47, a cause of action does not accrue the moment the plaintiff suffers the injury, but rather on the day of that injury. Incapacity within the meaning of s. 47 on the day of the accident is sufficient: Kaszyk v. Kloetstra, 1976 ALTASCAD 120, [1976] 5 W.W.R. 205 at pp. 207-09, 71 D.L.R. (3d) 458 (Alta. C.A.). If Ms. Bannon was incapacitated, her incapacity began on the day of the accident. I need not consider the effect of incapacity which arises after the day of the accident but during the seven-day notice period.

Note 4: The trial judge appears to have accepted the evidence of Mr. McPherson with respect to the timing of the conversation.

Note 5: Ms. Bannon had knee replacement surgery some years before the accident.