DATE: 20010410

DOCKET: C34685

COURT OF APPEAL FOR ONTARIO

RE: JOHN J. FORDE (Plaintiff/Appellant) – and – ALCAN ALUMINUM LIMITED and ALCAN ADMINCO INC. (Defendants/Respondents)

BEFORE: CHARRON, ROSENBERG AND GOUDGE JJ.A.

COUNSEL: Gidron M. O. Cadogan For the appellant

Bruce Pollock For the respondent

HEARD: April 4, 2001

On appeal from the judgment of Justice John R. Jennings dated July 6, 2000.

E N D O R S E M E N T

Released Orally on April 4, 2001

[1] The appellant appeals from the dismissal of his action under Rule 21. The action purportedly based on negligence and on breach of fiduciary duty, was dismissed on the basis that it is framed in negligence only and brought after the expiry of the six year limitation period.

[2] The claim as pleaded does not properly raise the cause of action of breach of fiduciary duty.

[3] As pleaded in negligence, the claim does not address the limitation issue raised in the statement of defence. While the discoverability finding of the motions judge was proper on the pleading before us, we would give leave to the plaintiff to amend his statement of claim to answer the limitation defence by addressing discoverability. The plaintiff may also amend his pleading, if advised, to plead breach of fiduciary duty.

[4] However, this order must be on terms that the amendments will be made within 30 days and the appellant pay to the respondent its costs of the motion and the appeal fixed at $3,500 within 30 days. If these terms are not met the appeal is dismissed with costs.

"Louise Charron J.A."

"M. Rosenberg J.A."

"S.T. Goudge J.A."