DIVISIONAL COURT FILE NO.: 248/16
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: LBP HOLDINGS LTD. v. ALLIED NEVADA GOLD CORP. and others
BEFORE: NORDHEIMER J.
COUNSEL: M. Stroh, A. Morganti & P. Neufeld, for the moving party/plaintiff
J. Fabello, G. Dingle & E. Che, for the responding parties/defendants, Cormark Securities Inc. & Dundee Securities Ltd.
HEARD at Toronto: written submissions
ENDORSEMENT
1Within a motion for leave to appeal brought by the defendants, Cormark Securities Inc. & Dundee Securities Ltd., the plaintiff brings this motion to strike out the reply factum filed by those defendants.
2As of January 1, 2015, motions for leave to appeal in the Divisional Court, under r. 62.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, are heard in writing. In making that change, the Divisional Court essentially adopted the existing rules that applied to motions for leave to appeal in writing used by the Court of Appeal. One of those rules is r. 61.03.1(11) that reads:
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.
3The right to file a reply factum is very limited. As the rule makes clear, it applies only where a new issue is raised by the responding party. It does not apply where the responding party simply raises a response to the moving party’s issues that the moving party might not have anticipated or which reflects a different perspective on the issue: Dennis v. Ontario Lottery and Gaming Corp. (2012), 2012 ONCA 368, 110 O.R. (3d) 318 (C.A.). Notwithstanding the limited application of the rule, counsel frequently seek to file a reply factum. Consequently, the Divisional Court adopted an administrative practice of requiring leave of a judge before a reply factum would be accepted for filing. Unfortunately, in this case, the court office accepted the reply factum for filing without seeking the approval of a judge.
4This error has, in turn, led to the plaintiff in this case bringing a motion to strike the reply factum and, now, motion material and facta have been filed on that motion. This is, of course, exactly the type of additional time and expense, both for the parties and the court, that was hoped to be avoided by a proper adherence to the requirements of the rule supervised by the administrative practice.
5In any event, the matter has been brought to me as the administrative judge for the Divisional Court to determine the motion to strike the reply factum. The reply factum states that it is being filed in response to five issues raised in the plaintiff’s factum on the motion for leave to appeal. Those issues can be summarized as:
(a) the proper test for leave to appeal;
(b) the impact of certain evidence on the ultimate decision;
(c) the test for the admissibility of expert evidence;
(d) the proper interpretation of the expert evidence;
(e) the scope of permissible lay opinion evidence.
6As may be evident from the delineation of the issues that the reply factum addresses, these are not new or fresh issues. They are issues that are central to these defendants’ motion for leave to appeal. The plaintiff simply puts forward competing arguments on the issues and their impact on the correctness of the ultimate decision. As Gillese J.A. said in Dennis at para. 8:
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.
7The reply factum does not fit within the express terms of the rule nor is it necessary for a proper determination of the motion for leave to appeal. The judge deciding that motion will be quite capable of understanding the differences between the parties’ positions without the additional input provided by the reply factum. Consequently, the reply factum is ordered to be struck from the record.
8Lastly, I note that, notwithstanding the provision in r. 57.01(6), neither party filed a costs outline with their motion material. While that failing would allow me to fix the costs without requiring further submissions, I will withhold doing so for a short time. If the parties cannot settle the matter of costs, they may make brief written submissions within ten days of the date of these reasons.
NORDHEIMER J.
DATE: August 23, 2016