Court of Appeal for Ontario denies leave to file 500 page factum

The Court of Appeal for Ontario has recently emphasized the requirement for concise factums on appeals. In OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, the moving party sought leave to file an overlength factum. The draft factum exceeded 500 pages (over 300 of which were appendices). This exceeded the 30-page limit under the governing Practice Direction by about 16 times, although the moving party was prepared to reduce the factum to about 125 pages.

Justice Roberts dismissed the motion, seeing “no reason why, with concise writing and thoughtful editing, the moving party cannot present its appeal within the 30-page limit”. Even a 125-page factum “would be oppressive to the respondents and unhelpful to the panel hearing this appeal.”

OZ Merchandising is a reminder that concise factums are required and also good advocacy. This is reflected in the principles that Roberts J.A. articulated for motions to file an overlength factum:

  1. The 30-page limit in the Practice Direction is the maximum, not a starting point, to accommodate reasonably complex cases. Simpler cases often do not require the full 30 pages.
  2. The purposes of the 30-page limit are: (a) “to focus counsel on the issues and not have a factum that goes on, and in fact, wanders”; and (b) “to keep appeals manageable, efficient and cost-effective for the litigants and the court”. This reflects counsel’s duty of efficiency to the court.
  3. Leave to file an overlength factum is “exceptional and granted sparingly in special circumstances”. 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’”.
  4. There is no automatic page-limit extension for appeals that: (a) raise important and complex questions; (b) feature numerous grounds of appeal; or (c) arise from protracted proceedings or a lengthy trial.

In OZ Merchandising, the motion failed partly because the “materials and submissions simply contain[ed] general statements about the complexity of the legal and factual issues, the number of grounds in the notice of appeal”, etc. This demonstrates that, in those rare cases where a page-limit extension is required, the moving party must be very precise about why procedural fairness and justice require more pages. Generalities will not suffice.

Justice Roberts also commented on the “shotgun approach to appellate advocacy” reflected in the approximately 60 grounds in the appellant’s notice of appeal, quoting Chartier J.A. (now C.J.M.):

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.

In the end, the Court granted the moving party four weeks to reduce its factum down to 30 pages.

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Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

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