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Appeals - Reply. Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2024) the Ontario Court of Appeal considers the somewhat-disputed issue of 'reply facta':[20] Given that I will be leaving the court at the end of the year, might I venture a last comment about reply factums. I previously expressed the view that the Rules should be amended to permit appeal reply factums in our court as of right: Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4. I understand that the Civil Rules Committee subsequently considered the matter and declined to amend the rules. I would hope that one result of the ongoing Civil Rules Review will be that reply factums are to be permitted, as of right, in appeals.
[21] I remain of the view that reply factums would enable better panel preparation, knowing in advance the appellant’s position on all matters raised by the respondent, and therefore would result in a more focused use of valuable judicial oral hearing time. Also, judicial time is best used, in my respectful view, in hearing and disposing of appeals, not in managing appeals, although that is often necessary. Where opportunities exist to reduce the amount of judicial time devoted to appeal management – such as the time required to consider requests to file reply factums – the rules should be crafted to facilitate such a reduction. . Sternberg v. Cresford Capital Corporation
In Sternberg v. Cresford Capital Corporation (Ont CA, 2024) the Ontario Court of Appeal granted a leave to file a reply appeal factum:[1] The appellant moves for an order authorizing him to file a reply factum. The appeal is scheduled to be heard on April 29, 2024.
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[4] A reply factum is not the norm, hence leave is required. But where, as here, new issues are raised the court is entitled to prepare in advance for the full scope of oral submissions. The parties in turn benefit from a hearing that focuses squarely on the issues to be decided.
[5] The responding factum does raise new issues. The appellant may file his reply factum. The respondent, having raised and addressed the issues in its factum is not entitled to a sur-reply factum. . 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 appellate reply facta:[15] In an earlier decision, I expressed the view that our court should consider adopting the practice of accepting reply factums on appeals: Prism Resources Inc. v. Detour Gold Corp., 2022 ONCA 4. In a recent decision, my colleague, Justice Nordheimer, expressed a view to the contrary observing that “there are limits on the usefulness of any element of advocacy, whether written or oral. More does not always mean better”: Goberdhan v. Knights of Columbus, 2023 ONCA 269, at para. 5. A healthy debate. . 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. . Prism Resources Inc. v. Detour Gold Corporation
In Prism Resources Inc. v. Detour Gold Corporation (Ont CA, 2021) a single judge of the Court of Appeal (Brown JA) lamented the leave requirement for filing a reply factum in civil appeals [the reasons are 20 paras long, all relevant].
. Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin
In Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin (Div Ct, 2020) the Divisional Court criticized the filing of a 'reply factum' in an RTA appeal:Preliminary Issue of the Appellant’s Reply Factum
[32] The appellant filed a reply factum that raised new issues not raised in its initial factum. There is no right to file a reply factum under the Rules of Civil Procedure, except in limited circumstances on a motion for leave to appeal an interlocutory order (see Rule 61.03.1(11)).
[33] The appellant states that Labrosse J., in a case management endorsement, set a date for the filing of reply materials. Even if that constituted authorization to file a reply factum, this was an improper reply factum.
[34] A reply factum should be filed only to address a new issue raised in the respondent’s factum that has not been addressed in the appellant’s factum. Leave may also be sought to file a reply factum if a matter could not have been dealt with in the initial factum – for example, because there has been a change in the law, such as the Supreme Court’s decision in Vavilov. Normally, reply factums are brief, and they should not repeat or amplify on what is in the initial factum.
[35] The argument in the appellant’s reply factum was 18 pages in length. The only new issue was the request to appoint Mr. Séguin as litigation guardian, which took less than a page.
[36] The rest of the factum was improper. It raised a new issue respecting s. 204(1) of the Act (an issue that the appellant had not raised before the Board), a new argument that the Board had pre-determined the outcome, and a new argument that the Board erred in failing to determine if there was a landlord and tenant relationship between JJ and the appellant. To its allegations of procedural unfairness, it added the failure to swear or affirm witnesses and to permit cross-examination. It also added new information about the facts (including alleged facts about the parents and the investigation, when the Board had ruled that such information was not relevant), as well as the statutory context for the care home, including a detailed discussion of the Developmental Services Act. Finally, it re-argued, at length, the points in the initial factum.
[37] This was an improper reply factum, and it should not have been filed. To the extent that it raised new issues, it was unfair to the respondent, who was not able to respond.
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