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Appeals - Oral Argument. Pharmascience Inc. v. Janssen Inc.
In Pharmascience Inc. v. Janssen Inc. (Fed CA, 2023) the Federal Court of Appeal alludes to the setting out of an appeal legal issue in the factum, but it not being addressed in oral argument:[57] A final issue that was raised as an alternative argument in Pharmascience’s memorandum of fact and law concerns the scope of the injunction that was granted by the Federal Court in its judgment. This issue was not addressed orally at the hearing of this appeal, but it also was not given up. . Kikites v. York Condominium Corporation No. 382
In Kikites v. York Condominium Corporation No. 382 (Ont CA, 2023) the Court of Appeal considered an appeal from an application against the condo corporation (only the corporation, no neighbours) [under s.134 (compliance orders) and s.135 (oppression remedy)] of the Condominium Act, here involving noise complaints. Some of the noise was confirmed though much of that related to necessary medical care for the neighbour's child.
At paras 18-28 the court engages in an extended 'fresh law' analysis, which essentially finds that because the focus of oral argument at the application stage was 'oppression' [s.135], and that at the appeal stage it was 'compliance orders' [s.134], that the appellant was prevented from shifting gears to advance the 'compliance order' argument (regardless of the written pleadings):[28] In this case, although the appellant made some references to s. 134 in his Amended Notice of Application, and in his written submissions to the application judge, the application judge was not asked to undertake the analysis that we are being asked to “review” on appeal. To allow the appellant to change direction in this manner would require this court to engage in a fact-finding exercise. This is not the role of an appellate court. Moreover, permitting a new issue to be raised at this juncture runs counter to the interests of finality in litigation. Consequently, the following reasons focus on the application judge’s rejection of the appellant’s request for an oppression remedy. . Meyer-Schelbert v. Meyer
In Meyer-Schelbert v. Meyer (Ont CA, 2023) the Court of Appeal illustrates the uncertainty that exists over whether an appeal court will consider argument that is raised in the factum, but not also raised again in oral argument:[13] The appellant raised other grounds of appeal in his factum which were not pursued in oral submissions. We are not persuaded that any of those grounds provide a basis for appellate intervention. . 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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