



COURT OF APPEAL FOR ONTARIO

CITATION:
Dennis v. Ontario Lottery
    and Gaming Commission, 2012 ONCA 368

DATE: 20120531

DOCKET: M41367 (M40972)

Gillese J.A. (In Chambers)

BETWEEN

Peter Aubrey Dennis and Zubin Phiroze Noble

Responding Parties/Plaintiffs (Appellants)

and

Ontario Lottery and Gaming Corporation

Moving Party/Defendant (Respondent on Appeal)

Proceeding under the
Class
    Proceedings Act
,
1992
, S.O. 1992, c. 6

James Doris and Matthew Milne-Smith, for the moving
    party

Jerome R. Morse and Lori Stoltz, for the responding
    parties

Heard in writing

On a motion to strike the appellants Reply Factum on the
    motion for leave to appeal from the judgment of the Divisional Court (Swinton
    and Low JJ., Wilson J. dissenting) dated December 2, 2011, with majority
    reasons by Low J. reported at 2011 ONSC 7024, 286 O.A.C. 329.

[1]

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 focussed 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:

(11)  If
    the responding partys factum raises an issue on which the moving party has not
    taken a position in the moving partys factum, that party may serve a reply
    factum.

[6]

I have carefully reviewed both parties factums.  Having done so, I
    accept the respondents 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 new issues.  Put another way, the respondents 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 partys 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 partys factum.

Disposition

[10]

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

Released: May 31, 2012 (E.E.G.)

E.E.
    Gillese J.A.


