Reply is confined to responding to an issue raised by the responding party on which the moving party has not taken a position

Dennis v. Ontario Lottery and Gaming Commission, 2012 ONCA 368 is a helpful case dealing with Reply in the context of a factum, but with broader implications.  Despite the practice of some, reply is strictly limited to responding to an issue raised by the responding party on which the moving party has not taken a position.  The Court writes:

[5]          Rule 61.03.1(11) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides:

(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.

[6]          I have carefully reviewed both parties’ factums.  Having done so, I accept the respondent’s 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 respondent’s 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 party’s 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 party’s factum.