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), 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.