Bannon v. Thunder Bay (City), [2002] 1 S.C.R. 716, 2002 SCC 20

Laura Bannon Appellant

v.

Corporation of the City of Thunder Bay Respondent

Indexed as: Bannon v. Thunder Bay (City)

Neutral citation: 2002 SCC 20.

File No.: 27985.

2002: February 21.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Bastarache, Binnie and LeBel JJ.

on appeal from the court of appeal for ontario

Limitation of actions -- Action against municipalities -- Plaintiff injured when falling on sidewalk -- Plaintiff hospitalized and prescribed medication -- Plaintiff successfully suing municipality for damages for gross negligence even though she had failed to provide written notice of her claim to municipality within statutorily required seven days -- Trial judge finding that plaintiff was physically and mentally incapable to comply with notice requirement -- Court of Appeal allowing municipality’s appeal -- Court of Appeal wrongly interfering with trial judge factual findings relating to medical evidence of plaintiff’s incapacity -- Trial judgment restored -- Meaning of expression “unsound mind” in s. 47 of Limitations Act, R.S.O. 1990, c. L.15.

Statutes and Regulations Cited

Limitations Act, R.S.O. 1990, c. L.15, s. 47.

Municipal Act, R.S.O. 1990, c. M.45.

APPEAL from a judgment of the Ontario Court of Appeal (2000), 2000 CanLII 5708 (ON CA), 48 O.R. (3d) 1, 185 D.L.R. (4th) 690, 131 O.A.C. 265, 9 M.P.L.R. (3d) 165, [2000] O.J. No. 1368 (QL), setting aside a decision of the Ontario Court (General Division) (1998), 47 M.P.L.R. (2d) 170, [1998] O.J. No. 3569 (QL), allowing the plaintiff’s action for damages for gross negligence. Appeal allowed.

W. Danial Newton and Erik S. Knutsen, for the appellant.

Stephen J. Wojciechowski, for the respondent.

The judgment of the Court was delivered orally by

[1] Iacobucci J.-- The Ontario Court of Appeal correctly pointed out that the trial judge did not consider s. 47 of the Limitations Act, R.S.O. 1990, c. L.15. In this connection, in our opinion, “unsound mind” as provided in s. 47 means in context lack of mental capacity from whatever source to perform the requisite steps called for by the Limitations Act or the Municipal Act, R.S.O. 1990, c. M.45. The Court of Appeal found that the trial judge applied the correct legal standard to determine the capacity of the appellant but reversed the trial judge on his factual findings. However, we believe the Court of Appeal wrongly interfered with the factual findings of the trial judge relating to the medical evidence of the appellant’s incapacity, the apparent contradictory testimony of the appellant, the evidence of a low tolerance for medication of the appellant, and the absence of any notation in the hospital records that the appellant was suffering from unusual grogginess or inattentiveness.

[2] Looking at all the record in this case, we are of the opinion that, while there may be questions raised as to the trial judge’s findings, they do not amount to palpable and overriding error to attract appellate intervention.

[3] With respect to the period of January 6 through January 9, 1996, based on the entire record, it is open to find a lack of mental capacity to perform the legal act of giving the notice required by the Municipal Act. Although the trial judge made no finding of incapacity for that four-day period, he did find the appellant was incapacitated by the Percocet medication and the effects of the medication persisted into January 9. It should also be noted that the act of writing a letter may by itself be a simple one, but in this context it requires a consideration of many factors and a mental capacity to address and assess those.

[4] Consequently, we would allow the appeal with costs throughout, set aside the judgment of the Ontario Court of Appeal, and restore the judgment of Kozak J. at trial.

Judgment accordingly.

Solicitors for the appellant: Carrel + Partners, Thunder Bay.

Solicitors for the respondent: Eryou Barristers, Thunder Bay.