The decision of Then J. of the Ontario Divisional Court in the case of Baroch v. Canada Cartage Diversified GP Inc., released May 8, 2015, dealt with the question of what constitutes a proper reply in the context of a written motion for leave to appeal.

Mr. Baroch, who is the plaintiff in a class action, sought to strike out the reply factum of the Defendant, Canada Cartage. Canada Cartage’s reply was in support of their written motion for leave to appeal a certification order.

In the normal course, applicants who seek leave to appeal in writing are entitled to file a reply factum pursuant to Rules 61.03.1(11)-(12) of Ontario’s Rules of Civil Procedure:

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.

Narrowing in on the particular circumstances of motions in writing, Then J. relied on the Ontario Court of Appeal decision in Dennis v. Ontario Lottery and Gaming Corp., 2012 ONCA 368:

[7] … 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.

Then J. granted Baroch’s motion to strike Canada Cartage’s reply factum on the basis that the factum raised no new issues.

[12]…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.

A reply factum that is merely responsive to that of the respondents will not be a proper reply in the context of a written leave motion.