COURT OF APPEAL FOR ONTARIO

DATE: 2005-05-16

DOCKET: C42117

RE: DANIEL BEAUDRIE and CHRISTINA BEAUDRIE and DALTON BEAUDRIE by his litigation guardian CHRISTINA BEAUDRIE and JOSHUA BEAUDRIE by his litigation guardian CHRISTINA BEAUDRIE (Plaintiffs/Appellants) v. ROB WILLIAMSON and THE DURHAM REGIONAL POLICE SERVICES BOARD (Defendants/Respondents)

BEFORE: MCMURTRY C.J.O., DOHERTY and LAFORME JJ.A.

COUNSEL: Edward Spong for the appellants Brian Grant for the respondents

HEARD: May 11, 2005

RELEASED ORALLY: May 11, 2005

On appeal from the order of Justice Boyko of the Superior Court of Justice dated June 7, 2004.

ENDORSEMENT

[1] The parties agree that if the solicitor had knowledge of Williamson’s identity on March 10, or could have had that knowledge by the exercise of reasonable diligence, the action is out of time. If, however, he did not have that knowledge until the next day, or could not through the exercise of reasonable knowledge have had that knowledge until March 11, the action is not barred by the relevant limitation period.

[2] We cannot agree with the motion judge’s statement that knowledge of the contents of the letter identifying Williamson must be imputed to the appellants’ solicitor as of March 10 merely because the junior secretary from the solicitor’s office picked up the letter from the offices of the Police Services Board late that afternoon. The secretary was charged only with the responsibility of retrieving the letter and taking it to the solicitor’s office the next day. The solicitor read the letter on March 11, the day it arrived in his office.

[3] It is agreed by counsel that the discoverability principle applies to the determination of when the six-month limitation period began to toll. That principle provides that a cause of action arises, for the purpose of determining when the limitation period operates, when the material facts on which the cause of action are based have been discovered or ought to have been discovered by the plaintiff with the exercise of reasonable diligence.

[4] In our view, reasonable diligence did not require that the solicitor read the letter on March 10 in the circumstances of this case. We think that the solicitor acted with reasonable diligence by reading the letter on March 11. Consequently, the action against Williamson is not barred by the limitation period.

[5] Counsel for the appellant conceded in oral argument that the order dismissing the action based on running the limitation period as against the Durham Regional Police Services Board should stand.

[6] The appeal is allowed to the extent that judgment dismissing the action against Williamson is set aside. That action may continue. The judgment dismissing the action against the Durham Regional Police Services Board stands. The results on the motion and appeal are mixed. No costs on either the motion or appeal.

“R. McMurtry C.J.O.”

“Doherty J.A.”

“H.S. LaForme J.A.”