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Fatiguing Facta: A Cautionary Tale

3 minute read

In an era of ever-increasing reliance on virtual advocacy – by necessity during COVID, and for economy and efficiency moving forward – the premium placed on effective written advocacy must not be underestimated. This is especially pertinent in appellate advocacy, where, in Ontario at least, our Court of Appeal has adopted an apparent preference for “hearing” appeals in writing.

Naturally, then, advocates may be tempted to pack in more argument per page under prescribed page limits or seek leave to extend such limits. A recent Court of Appeal decision provides a timely and cautionary tale against treating that court’s 30-page limit for facta too lightly or liberally. In OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532, Roberts J.A. dismissed a motion for leave to file a 125-page (down from 500 pages!) factum on appeal.

The moving party suggested that a factum any shorter “would not be of any utility” (para. 1) and “the 60 or so grounds in its notice of appeal cannot be fairly treated within the 30-page limit” (para. 10); Justice Roberts disagreed, noting: “there is much repetition in the factum… references to the trial transcripts and other materials, [and] 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” (para. 9).

In a fittingly concise decision offering a survey of relevant commentary on factum length from appellate courts across the country, Roberts J.A. provides useful guidance on when such an extension might be appropriate. Some key points include:

  1. the standard 30-page limit is a maximum, not a suggestion or starting point, set with complex cases in mind – simpler cases can (i.e. should) be dealt with in less (para. 4);
  2. the Rules of Civil Procedure stipulate facta should be concise, and jurisprudence directs counsel to be focused on the critical issues (para. 4);
  3. leave is required to submit a factum longer than 30 pages, will be granted exceptionally and only in special circumstances (para. 5);
  4. there is a “requirement of conciseness” and a “duty of efficiency to the court” in order “keep appeals manageable, efficient and cost-effective for the litigants and the court” (para. 5);
  5. an extension should be granted only if it is “required in the interests of procedural fairness and justice” to give the other side notice of the issues on appeal and adequately assist the court (para. 6); and
  6. the importance or complexity or number of issues on appeal, the duration of underlying proceedings or length of trial below are only factors to be considered, not automatic justifications for granting an extension of the page limit (para. 7).

Justice Roberts’ decision reminds me of one of my favourite judicial quips, from D.M. Brown J. (as he then was) dealing with excessively lengthy pleadings in Rare Charitable Research Reserve v. Chaplin, 2009 CanLII 49639 (ONSC), at para. 23:

… counsel should strive to write pleadings as a short story, not as an effort to match the length of War and Peace.

I am confident that Justice Brown, now on the Court of Appeal, and his colleagues on that court hold precisely the same views concerning the length of appellant and respondent facta submitted to the Court of Appeal.

While the point is made in the extreme example of a proposed 125-page factum, the OZ Merchandising decision is more than an example of “bad facts make bad law” (or bad procedural rulings). Rather, is a helpful reminder to counsel advocating in any court of our “duty of efficiency to the court”, the expectation that we are to confidently prioritize arguments and separate the wheat from the chaff, and the importance of conciseness for effective written advocacy, especially but not only in the appellate context.

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Jacob R. W. Damstra

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