



COURT OF APPEAL FOR ONTARIO

CITATION: Fanshawe College of Applied Arts and Technology v.
    Au Optronics Corporation, 2016 ONCA 131

DATE: 20160211

DOCKET: M46040 &
    M46051 (C60670)

Huscroft J.A. (In Chambers)

BETWEEN

The Fanshawe College
    of Applied Arts and Technology

Plaintiff/Appellant

and

AU Optronics Corporation
, Chi Mei Corporation,

Chi Mei
    Optoelectronics Corporation, Nexgen Mediatech Inc.,

and
Hannstar
    Display Corporation

Defendants/
Respondents

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

J. Kenneth McEwan, for the respondent AU Optronics
    Corporation

John Callaghan, for the respondent Hannstar Display
    Corporation

Heard:  February 8, 2016

ENDORSEMENT

[1]

Two motions are before the court.

[2]

The first concerns Fanshawe College of Applied Arts and Technologys (Fanshawe)
    appeal from the order of the motion judge denying a request to amend its
    statement of claim to add 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 Fanshawes claim and that MASSs claim was statute-barred.

[3]

Fanshawe says that paras. 61 to 85 of the respondent HannStars factum
    and paras. 49 to 88 of the respondent AUs factum raise issues that go beyond
    the scope of the motion judges 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 judges 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
    Fanshawes 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 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
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:
Perka v. The Queen
, [1984] 2 S.C.R. 232, at p. 240. 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
fact
ums
    and in oral argument before the motion judge, who acknowledged that he did not
    deal with all of them in his decision.

[10]

Accordingly,
    Fanshawes 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 courts 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 Fanshawes
    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 courts
    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. Fanshawes motion
    to amend its statement of claim was brought in response to the respondents
    motion for summary judgment. Fanshawes goal appears to have been to add MASS
    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]

Fanshawes
    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 $1250,
    inclusive of all applicable taxes and disbursements.

Grant
    Huscroft J.A.


