Fanshawe College Of Applied Arts And Technology v. Au Optronics Corporation: Consolidating Class Action Appeals While Refusing To Strike Portions Of A Factum

Fanshawe College of Applied Arts and Technology v. Au Optronics Corporation, is a short endorsement of the Ontario Court of Appeal that addressed two aspects of appellate practice:

when portions of factums should be struck; and when a Divisional Court appeal should be consolidated with a Court of Appeal appeal. In an apparent attempt to allow the panel hearing the appeal to decide all relevant issues in the most efficient manner possible, Justice Huscroft refused to strike the portions of the factums, and ordered consolidation of the different appeals.

Background

The appellant brought a motion to add a second plaintiff in a class action. The motion judge concluded that the proposed amendment expanded the scope of the appellant's claim and that the proposed second plaintiff's claim was in any event statute-barred.

The respondents had also brought a summary motion to dismiss the appellants' claim for being statute-barred. The motion judge denied the respondents' motion. The respondents' appeal to the Court of Appeal was quashed on the basis that it was interlocutory (discussed here). The Divisional Court then granted leave to appeal.

Striking Portions of Factums

The appellant brought a motion to strike certain paragraphs in the respondents' factums, arguing they raised issues that went beyond the scope of the motion judge's reasons and its appeal. The respondents opposed the motion to strike but consented to the filing of a reply factum. Justice Huscroft held that the panel hearing the appeal could elect not to consider the impugned paragraphs, but it was inappropriate to strike them. He granted leave to file a reply factum:

[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...