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.
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
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
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:
 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.
 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,
 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 factums and in
oral argument before the motion judge, who acknowledged that he did
not deal with all of them in his decision.
 Accordingly, Fanshawe's
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.
Consolidating the appeals
Notwithstanding efficiency issues, the Ontario Court of Appeal
does not always order consolidation of appeals in the same manner
if doing so would result in it deciding issues within the
jurisdiction and expertise of the Divisional Court – see, for
example, Cavanaugh v. Grenville Christian College,
here. But Justice Huscroft nonetheless granted the
 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 court's jurisdiction to
hear and determine an appeal that lies to the Divisional Court.
 The parties agree that the
question whether the discoverability rule applies to the limitation
period in the Competition Act arises in both
Fanshawe's appeal to this court and the respondents' appeal
to the Divisional Court.
 Fanshawe submits that the
Divisional Court could be expected to await this court's
decision on the discoverability issue, so there is no risk of
inconsistent decisions and no reason to consolidate.
 In my view, it is appropriate to
consolidate these proceedings. Fanshawe's motion to amend its
statement of claim was brought in response to the respondents'
motion for summary judgment. Fanshawe's 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.
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