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Any Last Words? Time for a Right of Written Reply in Appellate Advocacy

5 minute read

In one of the first decisions from the Court of Appeal for Ontario of 2022, Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, Justice David Brown opened the year with a call for change to our rules of procedure for civil and criminal appeals to allow for an automatic right to file a reply factum. The unopposed motion for leave to file a reply factum by Detour Gold Corporation presented Justice Brown with a platform to advocate for a rule change in the name of efficient and effective appellate advocacy.

Written advocacy, Justice Brown writes, “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.”[1] Despite this “foundational role” of written advocacy, in Justice Brown’s view, our rules fall short by failing to “complete the circle” and allow the appellant the right to file a reply factum. Instead, the rules compel appellants to bring a motion for leave to file a reply factum – such motions being costly and inefficient in Justice Brown’s view.

A reply factum on appeal would permit:

  • the appellant to address an argument advanced in the respondent’s appeal factum that was also made by the respondent below but not dealt with in the decision under appeal, thus not addressed in the appellant’s main factum;[2]
  • an appellant by cross-appeal to respond to an argument set out in the respondent by cross-appeal’s factum that was not initially raised;[3]
  • the appellant to clarify its position and present the panel with a more precise articulation of its argument for their consideration prior to the oral hearing;[4]
  • appellate advocates to 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;[5]
  • the Bench to prepare for oral argument confident that they fully understand how both sides join issue on the key matters and tailor their questions to counsel or the parties appropriately;[6] and, collectively,
  • both appellate counsel and the Bench to immediately “get into the meat” of the key issues on appeal, making for a more efficient use of time in oral argument and increasing the likelihood of a “hot bench” that is fully prepared and ready to dive into the core issues on an appeal.[7]

In addition to the reasons noted above, used effectively, the written reply would allow the appellant to clarify, correct, or answer unfounded criticisms in the respondent’s factum that would otherwise need to be “dealt with in oral argument”, diverting precious time during the hearing away from the heart of the matter.

Justice Brown’s decision is silent, however, about the real risk that amending the rules to include an automatic right of reply will lead to a perceived need on counsel’s part to exercise that right in every case—leading to an unnecessary increase in client costs in every appeal. Just as we at the Bar seem to require a constant reminder that the 30-page limit for factums is a limit, not a target, we will likely need reminders to treat the written reply factum as optional, not mandatory.

Recognizing that Justice Brown’s position will not be universal, writing for myself, I join with Justice Brown’s call for an amendment to the rules to permit appellants to file a brief reply factum without the need to bring a motion for leave to do so.

I would encourage other appellate lawyers to answer the call and advocate for such a change. If and when such amendments to the rules are made, I would also encourage my colleagues at the Bar to remember to be judicious in using a written reply factum, thinking of the written reply, like the oral reply, as exceptional, not expected.

[1] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, at para. 2

[2] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, at para. 7.

[3] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, at para. 7.

[4] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, at para. 7.

[5] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, at para. 15.

[6] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, at para. 16.

[7] Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, at paras. 11 & 17.

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