The Fanshawe College of Applied Arts and Technology v. AU Optronics Corporation et al.

[Indexed as: Fanshawe College of Applied Arts and Technology v. AU Optronics Corp.]

Ontario Reports

Court of Appeal for Ontario,

Huscroft J.A. (in Chambers)

February 11, 2016

129 O.R. (3d) 391 | 2016 ONCA 131

Case Summary

Appeals — Consolidation — Motion judge denying appellant's request to add another plaintiff in its class action on ground that proposed plaintiff's claim was statute-barred — Appellant appealing to Court of Appeal — Motion judge dismissing respondents' motion for summary judgment on grounds that discoverability rule applies to limitation [page392] period in Competition Act and discoverability was genuine issue requiring trial — Respondents appealing to Divisional Court — Respondents' motion to consolidate their appeal with appellant's appeal granted — Discoverability issue overlapping both appeals.

The appellant's motion to amend its statement of claim to add another plaintiff in its class action was dismissed on the ground that the proposed plaintiff's claim was statute-barred. The appellant appealed to the Court of Appeal. The respondents' motion for summary judgment was dismissed on the grounds that the discoverability rule applies to the limitation period in the Competition Act, R.S.C. 1985, c. C-34, and discoverability was a genuine issue requiring a trial. The respondents appealed to the Divisional Court. The appellant brought a motion to strike part of the respondents' factum, arguing that it raised issues that went beyond the scope of the appeal. The respondents brought a motion to consolidate their appeal with the appellant's appeal.

Held, the appellant's motion should be dismissed; the respondents' motion should be granted.

The respondents were not limited to making arguments in their factum in response to the motion judge's reasons. The paragraphs that the appellant sought to strike were in no way inappropriate and raised arguments concerning defences to the proposed claim.

It was appropriate to consolidate the appeals. Not only was there an overlap on the discoverability issue, there was also an overlap in the evidence required for the two appeals.

Cases referred to

R. v. Perka, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, [1984] S.C.J. No. 40, 13 D.L.R. (4th) 1, 55 N.R. 1, [1984] 6 W.W.R. 289, J.E. 84-1013, 28 B.C.L.R. (2d) 205, 14 C.C.C. (3d) 385, 42 C.R. (3d) 113, EYB 1984-149792, 13 W.C.B. 33

Statutes referred to

Competition Act, R.S.C. 1985, c. C-34 [as am.]

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2) [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.12(3)(d)

MOTION by the appellant to strike parts of the respondents' factum; MOTION by the respondents to consolidate the appeals.

Paul J. Bates and Kerry McGladdery-Dent, for appellant Fanshawe College.

J. Kenneth McEwan, for respondent AU Optronics Corporation.

John Callaghan, for respondent HannStar Display Corporation.

[1] Endorsement of HUSCROFT J.A. (in Chambers): — Two motions are before the court.

[2] The first concerns Fanshawe College of Applied Arts and Technology's ("Fanshawe") appeal from the order of the motion judge denying a request to amend its statement of claim to add [page393] MASS Engineered Design Inc. ("MASS") as a plaintiff in its class action against AU Optronics Corp ("AU") and HannStar Display Corp. ("HannStar"). The motion judge concluded that the proposed amendments expanded the scope of Fanshawe's claim and that MASS's claim was statute-barred.

[3] Fanshawe says that paras. 61 to 85 of the respondent HannStar's factum and paras. 49 to 88 of the respondent AU's factum raise issues that go beyond the scope of the motion judge's reasons and its appeal. It seeks an order striking these paragraphs or, in the alternative, leave to file a reply factum. The respondents oppose the motion to strike but consent to the filing of a reply factum.

[4] The second motion is brought by the respondents, in the context of their appeal from an order by the motion judge dismissing their motion for summary judgment against Fanshawe. The motion judge concluded that the discoverability rule applies to the limitation period in the Competition Act, R.S.C. 1985, c. C-34; that the commencement of a prior Ontario action did not establish that the causes of action in both actions were reasonably discoverable on May 2, 2007; that commencement of the action more than two years following the first action was not an abuse of process; and that the issue of reasonable discoverability was a genuine issue requiring a trial.

[5] The respondents' appeal of the motion judge's order to this court was quashed on the basis that the order was interlocutory. The Divisional Court has granted leave to appeal but no date for that appeal has been set.

[6] The respondents move to consolidate their Divisional Court appeal with Fanshawe's appeal outlined above, because the appeals arise from the same proceedings, were decided by the same motion judge, and concern the same facts and overlapping issues. Fanshawe opposes the motion. It says that the overlap concerns only a single issue -- whether the limitation period prescribed in the Competition Act is subject to the discoverability rule -- and that if it succeeds on its motion to strike the impugned paragraphs in the respondents' factums, there will be no overlapping issues.

The Motion to Strike

[7] Fanshawe submits that the impugned paragraphs should be struck because the respondents are attempting to "leapfrog" the leave to appeal requirement they would otherwise be required to meet concerning the issues it wants decided in this court. Fanshawe submits that a decision to strike the various arguments would not preclude them from being adjudicated in [page394] the Superior Court and Divisional Court in accordance with the usual practice.

[8] I do not think it is appropriate to strike anything from the respondents' factums. This is not to say that the Court of Appeal must deal with all of the issues and arguments when they are raised in this court. It is only to say that the respondents are entitled to raise them.

[9] First, the appeal lies from the order, not the reasons for the order. The respondents are not limited to making arguments in response to the reasons proffered by the motion judge. Rule 61.12(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 allows the respondents to raise additional issues in their factums, and they can seek to sustain the order on any basis that is not an entirely new argument: R. v. Perka, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, [1984] S.C.J. No. 40, at p. 240 S.C.R. Second, Fanshawe acknowledges that the paragraphs it proposes to strike are in no way inappropriate -- they are not scandalous, frivolous or futile. They raise arguments concerning defences to the proposed claim. Third, the arguments were raised by the respondents in their factums and in oral argument before the motion judge, who acknowledged that he did not deal with all of them in his decision.

[10] Accordingly, Fanshawe's request to strike the paragraphs from the respondents' factums is dismissed. Fanshawe may serve and file a reply factum of no more than 15 pages by March 4, 2016. The respondents do not have a right of reply to the reply factum.

The Motion to Consolidate the Appeals

[11] The power to consolidate appeals arises under s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which establishes this court's jurisdiction to hear and determine an appeal that lies to the Divisional Court.

[12] The parties agree that the question whether the discoverability rule applies to the limitation period in the Competition Act arises in both Fanshawe's appeal to this court and the respondents' appeal to the Divisional Court.

[13] Fanshawe submits that the Divisional Court could be expected to await this court's decision on the discoverability issue, so there is no risk of inconsistent decisions and no reason to consolidate.

[14] In my view, it is appropriate to consolidate these proceedings. Fanshawe's motion to amend its statement of claim was brought in response to the respondents' motion for summary judgment. Fanshawe's goal appears to have been to add MASS [page395] as a representative plaintiff for a different class of consumers as a safeguard against the possibility that its claim might be statute-barred. Not only is there an overlap on the discoverability issue, but there is also overlap in the evidence required for the two appeals.

[15] Accordingly, I would order that the respondents' appeal to the Divisional Court be transferred to the Court of Appeal and that these appeals be heard together.

[16] Fanshawe's appeal scheduled for February 26, 2016 is adjourned to a date to be set in consultation with the Appeal Scheduling Unit of the Court of Appeal, no later than June 2016. The parties are free to submit a letter to the attention of the senior legal officer requesting appeal management, if it is desired. This letter should provide details concerning why the appointment of an appeal management judge is appropriate.

[17] Each respondent is entitled to costs of these motions in the amount of $1,250, inclusive of all applicable taxes and disbursements.

Appellant's motion dismissed; respondents' motion

granted.

End of Document