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Appeals - Factum. Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2024) the Ontario Court of Appeal, faced with an respondent being refused filing of a too-long factum, takes the oppourtunity to expound on facta practice at large:[3] Rule 61 regulates three key elements of appeal factums: their structure, their content, and their length.
[4] Rule 61.11 governs an appellant’s factum and deals, in part, with those three elements:61.11 (1) The appellant’s factum shall meet the requirements of rule 4.06.1, be signed by the appellant’s lawyer, or on the lawyer’s behalf by someone the lawyer has specifically authorized, and consist of,
(a) Part I, containing a statement identifying the appellant and the court or tribunal appealed from and stating the result in that court or tribunal;
(b) Part II, containing a concise overview statement describing the nature of the case and of the issues;
(c) Part III, containing a concise summary of the facts relevant to the issues on the appeal, with such reference to the transcript of evidence and the exhibits as is necessary;
(d) Part IV, containing a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
(d.1) Part V, containing a statement of the order that the appellate court will be asked to make, including any order for costs;
(e) a certificate stating,
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(iii) that the factum complies with subrule (3) or, if applicable, with an order referred to in that subrule,
(iv) the number of words contained in Parts I to V, and
(v) that the person signing the certificate is satisfied as to the authenticity of every authority listed in Schedule A;
(f) Schedule A, containing a list of the authorities referred to; and
(g) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws.
....
(3) Parts I to V shall not exceed 9,200 words and 40 pages, except with leave of the court.
(4) In counting words for the purposes of subclause (1) (e) (iv) and subrule (3), every word used in Parts I to V of the factum shall be counted regardless of where it is used, including, for greater certainty, words used in citations, footnotes, headings or charts, diagrams or other visual aids. [Emphasis added.] [5] Rule 61.12 governs a respondent’s factum. It also deals with those three elements. The rule provides, in part:(3) The respondent’s factum shall meet the requirements of rule 4.06.1, be signed by the respondent’s lawyer, or on the lawyer’s behalf by someone the lawyer has specifically authorized, and consist of,
(a) Part I, containing a concise overview statement describing the nature of the case and of the issues;
(b) Part II, containing a statement of the facts in the appellant’s summary of relevant facts that the respondent accepts as correct and those facts with which the respondent disagrees, and a concise summary of any additional facts relied on, with such reference to the transcript of evidence and the exhibits as is necessary;
(c) Part III, containing the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
(d) Part IV, containing a statement of any additional issues raised by the respondent, the statement of each issue to be followed by a concise argument with reference to the law and authorities relating to that issue;
(e) Part V, containing a statement of the order that the appellate court will be asked to make, including any order for costs;
(f) a certificate stating,
....
(iii) that the factum complies with subrule (5.1) or, if applicable, with an order referred to in that subrule,
(iv) the number of words contained in Parts I to V, and
(v) that the person signing the certificate is satisfied as to the authenticity of every authority listed in Schedule A;
(g) Schedule A, containing a list of the authorities referred to; and
(h) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws that are not included in Schedule B to the appellant’s factum.
....
(5.1) Parts I to V shall not exceed 9,200 words and 40 pages, except with leave of the court.
(5.2) In counting words for the purposes of subclause (3) (f) (iv) and subrule (5.1), every word used in Parts I to V of the factum shall be counted regardless of where it is used, including, for greater certainty, words used in citations, footnotes, headings or charts, diagrams or other visual aids. [Emphasis added.] [6] The factum tendered last week by the respondent infringed the rules governing a factum’s structure because it added a series of schedules – C, D, and E – not recognized by the rules.
[7] The respondent’s proffered factum infringed the rules about a factum’s content because Schedules C, D, and E set out “additional facts relied on, with such reference to the transcript of evidence and the exhibits as is necessary”. Those facts should have been set out in Part II of the factum: r. 61.12(3)(b).
[8] That said, that the respondent presented those facts in a table-format was perfectly acceptable. The rules do not micro-manage how factums should present facts. On the contrary, the rules enable great creativity by parties in presenting the facts they wish to draw attention to, whether by using: tables, such as the respondent desires; charts; photographs; survey sketches; maps; or even hyperlinks to media content, such as CCTV footage.
[9] The respondent’s proffered factum also infringed the rules about a factum’s length. By my count, Parts I - V contained approximately 7,300 words; Schedules C, D, and E contained an additional 8,100 words or so. Combined, those portions of the factum were almost 60 pages in length, far in excess of the length prescribed by the Rules.
[10] Given that the respondent’s proffered factum did not comply with the Rules, registry staff quite properly refused to accept it. They should continue that course of action in future instances of attempts to file non-compliant factums.
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[13] I would not take issue with counsel who, for forensic or advocacy reasons, choose to place material prescribed for the main part of the factum – whether related to facts or law – into schedules at the end of a factum, even though such schedules are not contemplated by the Rules. There may be legitimate forensic reasons to do so, such as not interrupting the flow of written argument on an issue by inserting clunky tables or charts. It may well be that those tables and charts would be of great use to a panel in understanding an appeal. If they are placed in appendices that follow the prescribed Schedules A and B, in my view that would amount merely to a minor breach of the Rules that could be overlooked. However – and this is a big “however” – the word count and length of those additional schedules must be taken into account in determining whether the factum complies with the limits set by r. 61.11(3), in the case of an appellant’s factum, or r. 61.12(5.1), in the case of a respondent’s factum. Put more simply, creating additional end-of-factum schedules that contain matters the Rules contemplate will be placed in the main body of the factum is not a permissible way to avoid the Rules’ limits on factum length.
[14] Of course, circumstances may arise where the Rules’ factum length limits could hamper a party from fairly presenting its appeal argument. Such cases do exist. In those circumstances, it is always open to a party to seek permission from the court to file a factum that exceeds the length prescribed by the Rules. The opposing party may consent if afforded the same opportunity with its factum. If the opposing party refuses, the matter can be brought before a judge very quickly in our court, and the judge can deal with the request in a fashion that ensures procedural fairness to all parties.
[15] But the parties must remember that as a general rule our court discourages parties from operating on the basis that a party can first act in a non-compliant fashion and then seek forgiveness. Due regard for the court’s process, including fairness to the opposing party, requires that parties should first ask for dispensation from the Rules before attempting to file non-compliant documents. . Goberdhan v. Knights of Columbus
In Goberdhan v. Knights of Columbus (Ont CA, 2023) the Court of Appeal noted that appeals to it do not allow for a reply factum [while a motion for leave to appeal does:R61.03.1(11-13)]. Here an appellant moved for permission to file a reply factum, which was denied.
The court took the oppourtunity to expound on the utility and function of written and oral appeal arguments, and that of a 'sur-reply' (a further) stage of exchanges:[3] The appellant seeks to file a reply factum to respond to the respondent’s position, in its factum, that s. 7(6) of the Arbitration Act, 1991, S.O. 1991, c. 17 precludes an appeal of the motion judge’s order. The appellant relies heavily on the decision of Brown J.A. in Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4 as authority for the proposition that “there is a strong presumption that leave to file a reply factum” should be granted in civil appeals.
[4] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 do not provide for the filing of a reply factum, except on a motion for leave to appeal to this court. I do not share my colleague’s enthusiasm for imposing what is, in essence, a judicial amendment to the Rules of Civil Procedure that would create an automatic right to file a reply factum. My colleague says that the filing of a reply factum “would assist the panel to understand, before the oral hearing, precisely how the parties join issue on the key matters on appeal.” In my view, that understanding ought to arise from the main facta. If the main facta leave any doubt on how the parties join issue, that is the principal reason we provide for oral argument. That is the appropriate stage in the process where the panel hearing the appeal can canvass any uncertainty, or questions, they have regarding the parties’ positions.
[5] There can be no doubt that written submissions are very important in any appeal. In particular, they provide the necessary material for the panel to prepare for the issues raised and to understand the parties’ respective positions on those issues. However, there are limits on the usefulness of any element of advocacy, whether written or oral. More does not always mean better.
[6] In this case, for example, the application of s. 7(6) of the Arbitration Act can be responded to by the appellant in oral argument. It is not a situation where the panel will not be alert to the issue given its presence in the respondent’s factum. If the appellant has any jurisprudence upon which it wishes to rely to address this point, those authorities can be included in its book of authorities to be filed.
[7] I would also note, on this point, that the respondent raised the application of s. 7(6) of the Arbitration Act immediately upon receiving the appellant’s Notice of Appeal. Indeed, the respondent contemplated bringing a motion to quash the appeal on that basis, although he never did. In those circumstances, it is unclear to me why the appellant would not have addressed this issue in its factum.
[8] The other problem that routine filing of reply facta creates is revealed in this case. As I noted at the outset, counsel for the respondent has said that it would not oppose the appellant’s motion if two conditions were met. One is that each side should bear their own costs of the motion and the other is that the respondent should be permitted to file a sur-reply factum. It is this latter condition that creates the broader problem. The arguments that are marshalled in favour of permitting a reply factum can easily be adjusted to favour filing a sur-reply factum. At some point the back and forth must end. We have traditionally fixed that end point at one factum for each party. I do not see any compelling reason to depart from that traditional point on a regular basis.
[9] I do not suggest that there will never be a case where a reply factum would be justified. Those cases will be exceptional, however. I note, on this point, that r. 40(8) of this court’s Criminal Appeal Rules expressly provides that “in exceptional circumstances” the appellant can seek permission to file a reply factum. I would add that, while r. 61.03.1(11) of the Rules of Civil Procedure permits the filing of a reply factum on a motion for leave to appeal to this court, that is because there is no entitlement to an oral hearing on such motions.
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