CITATION: Baroch v. Canada Cartage Diversified GP Inc., 2015 ONSC 2979

DIVISIONAL COURT FILE NO.: 85/15

COURT FILE NO.: CV-13-492525-00CP

DATE: 20150508

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N :

MARC-OLIVER BAROCH

Moving Party/Plaintiff

(Respondent)

– and –

CANADA CARTAGE DIVERSIFIED GP INC., DIRECT GENERAL PARTNER CORPORATION and CANADA CARTAGE SYSTEM, LIMITED

Respondents/Defendants

(Moving Parties)

Eric R. Hoaken, Ian C. Matthews, Lauren P. S. Epstein and Larissa C. Moscu

for the Moving Party/Plaintiff (Respondent)

Linda Plumpton, Sylvie Rodrigue, Lisa Talbot and Sarah Whitmore

for the Respondents/Defendants

(Moving Parties)

HEARD at Toronto: April 29, 2015

THEN J.:

Introduction

1Mr. Baroch, who is the plaintiff in a class-action certified by order of Belobaba J. on January 30, 2015, seeks by motion in writing to strike the reply factum of the Defendant, Canada Cartage, which is seeking leave to appeal, also in writing, the order of Belobaba J.

2On the motion for leave to appeal Canada Cartage filed a 30 page factum addressing both branches of the criteria for leave to appeal contained in R.62.02(4) which states:

Grounds on Which Leave May Be Granted

(4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

3Mr. Baroch filed a 29 page factum in response which gave rise to a reply factum from Canada Cartage of 12 pages. The sole issue raised on this motion is whether this court should strike the reply factum for non-compliance with r.61.03.1(11).

analysis

Analysis

4Rule 61.03.1(11) applies to motions for leave to appeal to the Court of Appeal, pursuant to r.62.02(5) and, as of January 1, 2015, to motions for leave to appeal from the interlocutory order of a judge that are made to the Divisional Court.

5Rule 62.02(5) states:

(5) Subrules 61.03.1 (4) to (19) (procedure on motion for leave to appeal) apply, with the following and any other necessary modifications, to the motion for leave to appeal:

6Rules 61.03.1(11)-(12) read as follows:

Moving Party’s Reply Factum

61.03.1 (11) If the responding party’s factum raises an issue on which the moving party has not taken a position in the moving party’s factum, that party may serve a reply factum. O. Reg. 61/96, s. 6.

(12) The reply factum shall contain consecutively numbered paragraphs setting out the moving party’s position on the issue, followed by a concise statement of the law and authorities relating to it.

(emphasis added)

7In Dennis v. Ontario Lottery and Gaming Corp., 2012 ONCA 368, Rule 61.03.1(11), which governs reply factums on written leave motions to the Court of Appeal (and which applies to similar leave motions to the Divisional Court) has been interpreted by the Court of Appeal as having its plain meaning. Gillese J.A. granted a motion to strike a reply factum stating that reply is not a matter of right but should be confined to responding to a new issue raised. In this context, Gillese J.A. stated that referring to facts and cases that the appellant did not reference does not amount to raising a new issue. I adopt the observations and reasoning of Gillese J.A. at pars. 7-9 as follows:

7 As rule 61.03.1(11) makes clear, reply is not a matter of right. It is confined to responding to an issue raised by the responding party on which the moving party has not taken a position. In responding to the issues raised by the appellants, the respondent refers to facts and cases to which the appellants made no reference. However, this does not amount to raising an issue on which the appellants have not taken a position. It amounts to arguing the issues as raised by the appellants, with a focus on different facts and points of law.

8There is value in giving rule 61.03.1(11) its plain meaning and restricting reply factums to those in which the moving party responds to an issue raised by the responding party and on which the moving party has not taken a position. Self-evidently, the point of reply factums is to ensure that each party has had a fair and equal opportunity to argue the issues. A reply factum should not be permitted where it merely confirms or reinforces points already made or which could have been made in the moving party's initial factum.

9If, as the appellants contend, the respondent has misstated the evidence and/or set out partial statements of fact, in light of the considered reasons for decision at first instance and those of the Divisional Court, both majority and dissent, this will be apparent to the panel that considers the motion for leave. To reiterate, a reply factum should not be permitted when it amounts to re-argument of issues raised in the moving party's factum.

8Canada Cartage submits that with respect to the first branch of r.62.02(4) dealing with conflicts in the case law Baroch has raised new issues with respect to the decisions of the Court of Appeal in Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444 and Fulawka v. Bank of Nova Scotia 2012 ONCA 443 as well as new issues relating to the cases articulating the methodology requirement.

9With respect to the second branch of r.62.02(4) dealing with the importance of the appeal Canada Cartage submits that Baroch has advanced new issues or arguments and has erred in including unionized employees.

10Baroch submits that in his factum no new issues have been raised but that he has merely identified facts and cases that rebut Canada Cartage’s arguments seeking to demonstrate that its position in seeking leave to appeal lacks merit both factually and legally. It is the position of Baroch that the reply factum essentially reargues the issues raised in its original factum in light of the arguments raised by Baroch on those issues merely to confirm or reinforce the arguments made in the original factum.

11Having carefully reviewed Canada Cartage’s original factum, Baroch’s responding factum and Canada Cartage’s reply factum, I accept the position advanced by Baroch. As in Dennis, supra, Baroch’s factum is entirely responsive to the issues raised by Canada Cartage in its original factum. While Baroch’s factum refers to cases and facts not mentioned in the Canada Cartage factum and places his own interpretation on cases which are mentioned, significantly Baroch has done so in the context of the issues raised by Canada Cartage. No new issues are raised. I agree with Baroch that essentially Canada Cartage has sought to re-argue the issues raised in its original factum in light of Baroch’s response to those issues. This is neither helpful nor permissible.

12In coming to the conclusion which I have reached I accept from Dennis, supra, that the point of a reply factum is to “ensure that each party has had a fair and equal opportunity to argue the issues” and thereby to ensure that the Court is not misled in circumstances where oral reply is not available. For those reasons I also accept the submission advanced by Canada Cartage that the Court should proceed cautiously to assess whether the responding party on a motion for leave to appeal has confined itself to the issues raised by the moving party in order to ensure that each party is able to present its case fairly and fully and also to prevent the Court from being misled. In determining whether the moving party should be permitted to submit a reply factum. I have sought to do so in the circumstances of this case.

Conclusion

13Accordingly, I would grant Baroch’s motion and strike the reply factum.

Costs

14Both Baroch and Canada Cartage have submitted costs outlines in the amounts of $5,325.57 and $5,664.13 respectively on a partial indemnity basis. In my view, in the circumstances of this case it is fair and reasonable to award costs to Baroch, the successful party, in the amount of $5,000 inclusive of disbursements and HST payable forthwith.