Reasonable diligence and discoverability for limitation periods

Valesco v. North York Chevrolet Oldsmobile Ltd., 2011 ONCA 522 deals with diligence and discoverability for a limitation period. A period runs from the date a claim is discovered and that the earlier of "(a) the day the person with the claim discovers [among other things, that the act or omission that caused injury, loss or damage was that of the person against whom the claim is made], and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the  claim ought to have known of the matters referred". Accordingly there is a diligence component. The Court holds:

[7]              However under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, a limitation period begins to run on the date a claim is discovered.  And under s. s. 5(1) of the Act, a claim "is discovered on the earlier of, (a) the day the person with the claim discovers [among other things, that the act or omission that caused injury, loss or damage was that of the person against whom the claim is made], and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the  claim ought to have known of the matters referred to in clause [5(1)]a".

[8]              Accordingly, the issue for the motion judge was whether the solicitors for the appellants "ought to have known" that the respondents were the owners of the Denyer vehicle shortly after they received the Crown brief.

[9]              In our view, having regard to the combination of information appellant's counsel had indicating that Denyer was the owner of the Denyer vehicle, it was unreasonable for the motion judge  to conclude that appellants' counsel should have treated the ownership issue as a live issue upon receiving the Crown brief. That combination of information led the motion judge to conclude that appellants' counsel acted with reasonable diligence prior to receiving the Crown brief. In our opinion, counsel for the appellants acted with reasonable diligence in continuing to rely on that information until contrary information actually came to their attention.