Iacobucci J.
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.
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.
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.
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.