The Conduct of an Appeal Blog

Fanshawe College of Applied Arts and Technology v. Au Optronics Corporation: Consolidating Class Action Appeals While Refusing to Strike Portions of a Factum

Aug 3, 2016 4 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

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.


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 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.

[10]      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, discussed here. But Justice Huscroft nonetheless granted the respondents’ motion:

[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 court’s 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 Fanshawe’s 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 court’s 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. 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.