Dennis et al. v. Ontario Lottery and Gaming Corporation

[Indexed as: Dennis v. Ontario Lottery and Gaming Corp.]

110 O.R. (3d) 318

2012 ONCA 368

Court of Appeal for Ontario,

Gillese J.A. (in Chambers)

May 31, 2012

Civil procedure -- Appeals -- Leave to appeal -- Reply -- Respondent filing factum in response to appellants' motion for leave to appeal -- Respondent's factum not raising any new issues and entirely responsive to issues raised by appellants -- Reply factum filed by appellants struck -- Reply factums should be restricted to situations where moving party responds to issue raised by responding party and on which moving party has not taken position. [page319]

The appellants brought a motion for leave to appeal. The respondent filed a responding factum, and the appellants filed a reply factum. The respondent moved to strike the reply factum on the basis that its factum raised no issue on which the appellants had not already taken a position in their moving factum.

Held, the motion should be granted.

The respondent's factum did not raise any new issues and was entirely responsive to the issues raised by the appellants. Reply factums should be restricted to situations where the moving party responds to an issue raised by the responding party and on which the moving party has not taken a position. 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.

MOTION to strike a reply factum.

Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.03.1(11)

James Doris and Matthew Milne-Smith, for moving party. Jerome R. Morse and Lori Stoltz, for responding parties.

[1] GILLESE J.A.: -- The plaintiffs/appellants (the "appellants") have brought a motion for leave to appeal the decision of the Divisional Court, in which it upheld Cullity J.'s denial of certification in this proposed class proceeding. In support of their motion, the appellants filed a 30-page factum. In their factum, the appellants allege three errors on the part of the majority decision of the Divisional Court.

[2] The Ontario Lottery and Gaming Commission (the "respondent") filed a responding factum which focused largely on whether leave to appeal was appropriate, rather than the merits of the proposed appeal itself.

[3] The appellants purport to file a reply factum.

[4] The respondent moves to strike the reply factum on the basis that its factum raised no issue on which the appellants had not already taken a position in their moving factum.

Analysis

[5] Rule 61.03.1(11) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:

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.

[6] I have carefully reviewed both parties' factums. Having done so, I accept the respondent's submission on this matter. While its responding factum does cite facts and cases not mentioned by the appellants in their factum, it does not raise any [page320] new issues. Put another way, the respondent's factum is entirely responsive to the issues raised by the appellants.

[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.

[8] There 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.

[9] If, 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.

Disposition

[10] Accordingly, I would grant the motion and make the order as sought, striking the appellants' reply factum.

Motion granted.