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Zohar Levy, Fasken Martineau DuMoulin LLP

Appeal Court issues ‘clear call for reform to the rules’ on filing brief reply factums, lawyer says

Monday, January 10, 2022 @ 9:58 AM | By Amanda Jerome

An Ontario Court of Appeal decision granting a motion to file a short reply factum includes a call to rectify the “gap” in the Rules of Civil Procedure which could “compel an appellant to bring a motion for leave” in such circumstances.

In Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4 the appellant, Detour Gold Corporation, moved for “leave to file a reply factum of five pages, a draft copy of which was included in its motion record,” the court explained, noting that the motion was unopposed.

In an endorsement, released Jan. 5, Justice David Brown granted the motion and stressed the importance of written advocacy.

Writing for the Court of Appeal, Justice Brown explained that written advocacy is “the foundation upon which Ontario’s modern appellate advocacy process rests.”

“Written advocacy is the main tool by which the parties educate a panel about the issues on an appeal and then attempt to persuade the panel to the party’s position,” he added.

However, the judge noted, “both our civil and criminal rules of appellate procedure fail to ‘complete the circle’ on written advocacy.”

“While appellants and respondents can file written arguments of equal length, the rules generally do not afford an appellant the right to file a factum in reply to arguments made by a respondent in its appeal factum,” he explained, noting that instead the Rules of Civil Procedure “compel an appellant to bring a motion for leave to file a reply factum.”

Justice Brown also noted that motions “cost money, even when the relief sought is on consent or, as in the present case, unopposed.”

He added that a moving party “must file a motion record and factum” and they may also “file a book of authorities …”

“What costs do such filing requirements impose on a moving party? From the materials filed before me, I would estimate about $5,000 in the present case. Is that a necessary or reasonable expense for the court to impose upon a party for relief that is unopposed?” he queried.

The judge noted that on criminal side, when an appeal is in writing, “the appellant may file a reply factum of up to 10 pages in length,” but “in all other appeals an appellant must apply for leave to file a reply factum, which a judge should only grant ‘in exceptional circumstances.’ ”

Justice Brown opined that there are “many legitimate reasons why an appellant might want to file a reply factum,” including, for example, “an appellant might think it had failed to express a key argument in its appeal factum with sufficient clarity and would like to present the panel with a more precise articulation of its argument for their consideration prior to the oral hearing.”

He noted that this example is “advanced by some in the appellate Bar to counter calls for reducing the time allocated for oral argument in this court.”

“They argue that since the rules do not afford their client an automatic right to file a reply factum, they are unable to fully inform the panel about their ‘take’ on the respondent’s most important arguments until the day of the oral hearing. This gap in the rules, they contend, supports the need to maintain expansive oral argument time allocations,” he explained.

Although Justice Brown was persuaded by that argument, he did “see merit in the argument that permitting the automatic filing of a brief reply factum in all appeals would assist the panel to understand, before the oral hearing, precisely how the parties join issue on the key matters on appeal.”

“The schedules of the judges of this court contain a significant amount of pre-hearing preparation time,” he wrote, noting that “[J]udges of this court use that time well” and the court’s “culture expects that panel members will be well-briefed about an appeal before hearing oral argument.”

“As a result, in all but the most complex of appeals the time for oral argument is best used not to educate the panel on the basics of the appeal but to address the questions panel members wish to pose on the issues of concern to them, based on their pre-hearing review of the written appeal record, especially the factums,” he added.

Justice Brown noted that his colleague, Justice David Doherty, “gave a very good description of how a panel’s pre-hearing preparation using the written materials informs their expectations about how counsel will use the time allocated for oral argument” when he accepted the G. Arthur Martin Criminal Justice Medal from the Criminal Lawyers’ Association in 2019.

“In his remarks, Justice Doherty said that he was adamant in the view that the parties and counsel are entitled to a ‘hot court’ when they go into the Court of Appeal for Ontario. By a ‘hot court’ he meant ‘a court that has fully read the material, fully understands the arguments and is ready to get into the meat of them,’ ” he explained.

Justice Brown stressed that the “absence of a right in the civil and criminal appeal rules for an appellant to file a brief reply factum may prevent a panel from fully understanding the parties’ arguments before the oral hearing, thereby preventing the panel from immediately getting ‘into the meat of them’ at the start of the hearing.”

He noted that the “gap” in the rules “should be rectified by amending the civil and criminal appeals to permit appellants to file brief reply factums in any appeal, if they so wish.” Justice Brown suggested that “five pages would more than suffice in the overwhelming majority of cases.”

He emphasized that amending the rules “to permit a brief reply factum would benefit both counsel and the Bench.”

“Appellant counsel could prepare for oral argument confident that their clients have had the opportunity to fully and directly join issue on the key matters in the written materials considered by the panel before the oral hearing,” he wrote noting that the bench could also “prepare for oral argument confident that they fully understand how both sides join issue on the key matters” and its “questions to counsel or the parties could be tailored appropriately.”

“The result should be — dare I say — a more efficient use of the time for oral argument by allowing both counsel and the Bench to immediately ‘get into the meat’ of the key issues on appeal,” he determined, noting that amending the rules would “also save the parties unnecessary costs, and designing a cost-efficient procedural process should be as much a goal for appellate courts as it is for the trial division.”

Justice Brown noted that Detour Gold’s request in the present case “to file a reply factum of five pages is a reasonable one.”

“It is unfortunate,” he added, “that our rules have imposed unnecessary costs on Detour Gold for its reasonable request, and for that I apologize.”

Zohar Levy, Fasken

Zohar Levy, a partner at Fasken and counsel for the moving party with Harry Skinner, said lawyers and judges “are frustrated by this gap in the rules” and clearly the Court of Appeal “is open to receiving reply materials.”

She also highlighted “the guiding principle of advocacy” that Justice Brown noted “which is the role and the importance of written advocacy in helping the court come to the right decision by providing all of the relevant facts on an argument.”

“It just really underscores the importance of our jobs as advocates in order to allow the judges to do their job. And this particular decision talks about the critical role that reply materials play in fulfilling that job,” she stressed.

Levy also drew attention to Justice Brown’s reference to “the entitlement to a ‘hot court.’ ”

“The reality is that with the amount of prep time judges are given, especially with COVID-induced technology related struggles, not every judge can be a ‘hot bench’ coming off of just reading the materials,” she said, noting, however, that Justice Brown’s “emphasis on the importance of enabling judges to prepare themselves and dive into the meat of the argument” is “very useful for advocates to look at” when “trying to figure out what to do with written advocacy and oral advocacy.”

Levy noted that one thing she’s often asked by her mentees is: “how do you prepare differently for oral argument than you do for written argument because haven’t you already said all the important stuff in the facta?’ ”

“I think that the way Justice Brown describes the difference here is instructive; where written advocacy is your chance to really set out your story and tell the judge what’s going on and oral advocacy is supposed to be about getting into what are the judge’s concerns, and what are the problems here, what can we focus on to get to the right place” she explained.

Harry Skinner, Fasken

Skinner agreed and noted that this decision put into “stark terms that cases are won on the written component” and the oral advocacy, “in many ways,” is to fill in the gaps.

Levy said the decision is a “clear call for reform to the rules” and “hopefully it will precipitate that change on a more formal basis.”

“I think that Justice Brown is sending a very clear signal that the Court of Appeal is open to reply facta and if you think your case would be better heard if there’s a reply factum out there, this is a really easy thing to point to and say, ‘please grant me leave,’ ” she explained.

Bethanie Pascutto, an associate with Groia & Company and counsel for the responding party with Joseph Groia and David Sischy, said they “agree that there are many legitimate reasons why an appellant might want to file a reply factum and we agree with Justice Brown’s comments that the civil rules should allow for such a filing.”

Bethanie Pascutto, Groia & Company

She also noted Justice Brown’s reference to a “hot court” as an important takeaway for the profession.

“We thought it was an important decision,” she said, noting that “hopefully there will be some changes to the rules, as Justice Brown recommends.”

“I think a change to the rules would be helpful. Obviously, you can bring a motion to have a reply factum filed and you may very well be successful, but to have to go through that hurdle seems unnecessary, and we’re hopeful that the rules will be changed to permit appellants to file brief reply factums,” she added.  

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