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. OZ Merchandising Inc. v. Canadian Professional Soccer League Inc.

In OZ Merchandising Inc. v. Canadian Professional Soccer League Inc. (Ont CA, 2020) the Court of Appeal was faced with a request to increase appeal factum length beyond it's normal 30-pages:
[4] I start with some general, well-established principles. The maximum length of appellate facta is 30 pages: “Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario”, (March 1, 2017), at 11.7(4). The 30-page limit is not a suggestion or a starting point. It “has been set with a view to reasonably complex cases – simpler cases can often be dealt with adequately in much shorter factums”: Chief Mountain v. Canada (A.G.), 2012 BCCA 69, 317 B.C.A.C. 50, at paras. 6-7; R. v. Van Wissen, 2016 MBCA 108, at para. 5. These rationales are reflected in the provisions of rr. 61.11 and 61.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that stipulate the need for concise statements of the facts and law in the facta submitted by appellants and respondents. The purpose of the 30-page limit is “to focus counsel on the issues and not have a factum that goes on, and in fact, wanders”: Brown v. Lowe, 2000 BCCA 635, at paras. 1, 4. See also: R. v. Port Chevrolet Oldsmobile Ltd., 2008 BCCA 443, 262 B.C.A.C. 51, at para. 5; Saint John (City) v. Saint John Firefighters’ Association, International Association of Fire Fighters, Local 771 (2010), 2010 CanLII 39428 (NB CA), 362 N.B.R. (2d) 327 (C.A.), at para. 10.

[5] Relief from compliance with the 30-page limit for appellant and respondent facta requires leave of the court: Rules of Civil Procedure, rr. 61.09(4), 61.12(8); “Practice Direction”, at 11.7(5). Leave is exceptional and granted sparingly in special circumstances: Saint John Firefighters’ Association, at paras. 12-13; Canada v. General Electric Capital Canada Inc., 2010 FCA 92, 403 N.R. 114, at para. 5. While a party must be permitted to present its whole case effectively, this does not take away from the requirement of conciseness and the duty of efficiency to the court: General Electric Capital Canada Inc., at para. 5. As Paciocco J.A. observed in Michail v. Ontario English Catholic Teachers’ Assn. (4 September 2018), Toronto, M49554 (Ont. C.A.), at para. 15, “[T]he 30-page limit for facta is imposed to keep appeals manageable, efficient and cost-effective for the litigants and the court” (cited by Brown J.A. in Michail v. Ontario English Catholic Teachers’ Association, 2018 ONCA 950, at para. 6.).

[6] The overarching question is whether the extension is required in the interests of procedural fairness and justice “to advise the other side of the issues in dispute so it can prepare properly for the appeal and to assist the division of the Court that hears the appeal to deal effectively with the issues”: Port Chevrolet Oldsmobile Ltd., at para. 5; Saint John Firefighters’ Association, at para. 10. See also: JJM Construction Ltd. v. Sandspit Harbour Society, [1998] B.C.J. No. 3383 (B.C.C.A.), at para. 6.

[7] The fact that the appeal raises important and complicated questions of fact or law, there are numerous grounds of appeal, the underlying proceedings have been ongoing for many years, or the trial was lengthy, does not automatically justify an extension of the page limit. These circumstances inform many appeals that are nevertheless contained within the 30-page factum limit: General Electric Capital Canada Inc., at para. 5; Talwar v. Grand River Hospital Board of Directors, 2018 ONSC 6112 (Div. Ct.), at para. 36; Van Wissen, at para. 5.

[8] With these principles in mind, I turn to the circumstances of the present motion. While I give significant weight to the assessment of counsel for the moving party that a longer factum is required, the difficulty is that the materials and submissions simply contain general statements about the complexity of the legal and factual issues, the number of grounds in the notice of appeal, and the fresh evidence that the moving party will seek leave to file in order to present its narrative of events. From my review of the materials, I am unable to discern the necessity of an extended factum for the moving party to properly present its appeal. To permit the moving party to file a 125-page factum would be oppressive to the respondents and unhelpful to the panel hearing this appeal.

[9] Moreover, as the moving party fairly acknowledged, there is much repetition in the factum, as well as references to the trial transcripts and other materials, that could be easily excised. Furthermore, as the responding parties submit, portions of the proposed factum relate to matters not before the trial judge, including fresh evidence and a request to change the venue of the trial. I see no reason why, with concise writing and thoughtful editing, the moving party cannot present its appeal within the 30-page limit prescribed by the “Practice Direction”, at 11.7(4).

[10] I finish with the moving party’s submission that the 60 or so grounds in its notice of appeal cannot be fairly treated within the 30-page limit. This is not a determinative consideration. The moving party’s choice to raise numerous grounds of appeal does not serve as the kind of exceptional circumstance that justifies exceeding the 30-page limit. Such a “shotgun approach to appellate advocacy” was decried by Chartier J.A. (as he then was) in R. v. Henderson (W.E.), 2012 MBCA 93, 284 Man. R. (2d) 164, at para. 51, when faced with a request for an extended factum in an appeal where counsel raised 23 grounds of appeal. His comments, at para. 50, are apposite here:Courts expect counsel to be of assistance in the appellate process. They expect counsel not to waste the court’s valuable resources by simply dumping the appeal on the court’s lap. Counsel are expected to have sufficient confidence to prioritize their arguments, to separate the wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review. Not only is this in the best interests of their clients; it is in the best interests of the administration of justice.


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