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Appeals - Oral Compendium. Robertson v. Ontario
In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered a joint submission by the parties on a class action certification appeal (with cross-appeal) - here where the parties agreed on the size of facta and compendium, and the time length of oral submissions.
In these quotes, the court comments on oral compendia:[16] On the present appeal, the parties do not seek leave to file reply factums but they have indicated their intention to file Oral Hearing Compendiums pursuant to s. 26 of this court’s General Practice Direction Regarding All Proceedings in the Court of Appeal (2021). The General Practice Direction stipulates that the compendium may contain an “outline of 500 words or less of the party’s anticipated oral argument”.
[17] Experience shows that such “outlines” may take one of three forms. First, the outline may resemble a table of contents – often in bullet-point form – of the topics counsel anticipates addressing during oral argument. Second, an outline may function like a playbill, offering a synopsis of the points counsel intends to make in a “Summary of Act 1”, “Summary of Act 2”, “Summary of Act 3” … fashion. These two types of outlines are the ones most commonly seen. Their advocacy effectiveness is limited as they usually do not attempt to persuade the judge on any issue. They are more like a road-map of the path counsel hopes to follow at the oral hearing until, of course, the panel’s questions throw the road-map out the window.
[18] The third form of outline is not often seen but it constitutes the most effective use of the Oral Hearing Compendium as an advocacy tool. In it, counsel attempt to draft, within the outline’s word limit, the key paragraphs they would like to see in the panel’s reasons on each major issue. The third form of outline not only identifies the issues counsel intends to address but offers language explaining why the judge below did or did not err on each issue. It tries to plant in the minds of the panel the linguistic and analytical kernels for the disposition of an issue, which the panel can then water and transform into reasons accepting counsel’s position on the issue.
[19] I suspect this third form of “outline” is rare because it is a challenge to draft. Succinct writing is infinitely harder than filling up the 30 pages available in a factum. But, from an effective advocacy perspective, this third type of outline can operate in a most powerful fashion, providing the panel with tangible language and analysis they can quickly grasp and use, if they are persuaded to the position of counsel’s client.
[20] Of course, to act as a powerful advocacy tool, an Oral Hearing Compendium must find its way into the panel’s hands well before the hearing date so that the panel can read it, reflect on it, and prepare questions for counsel based upon it. The General Practice Direction calls for Oral Hearing Compendiums to be filed “in advance of an oral appeal hearing.” Unfortunately, in practice that too often translates into emailing the Oral Hearing Compendium to the court on the eve of the hearing or, in some cases, on the morning of the hearing. Such late delivery strips the document of its persuasive potential. To operate as an effective “putting-the-client’s-best-foot-forward” kind of advocacy tool, an Oral Hearing Compendium must be delivered to the court at least one week before the oral hearing.
[21] Accordingly, if the parties in the present case intend to file Oral Hearing Compendiums, which I would encourage them to do, they must deliver them no later than 5 p.m. on Monday, November 20, 2023. Given the significant legal issues at play on this appeal, I extend the permissible length of the outlines to 1,500 words each.
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