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
(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
 ... 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
Then J. granted Baroch's motion to strike Canada
Cartage's reply factum on the basis that the factum raised
...the point of a reply factum is
to "ensure that each party has had a fair and equal
opportunity to argue the issues" and therebyto 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
A reply factum that is merely responsive to that of the
respondents will not be a proper reply in the context of a written
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