In a recent Court of Appeal for Ontario motion decision in Goberdahn v Knights of Columbus, 2023 ONCA 269, Justice Nordheimer dismissed a request for leave to file a five-page reply factum. He rejected a recent call by Justice Brown of the Court of Appeal for Ontario in Prism Resources Inc. the Detour Gold Corporation, 2022 ONCA 4, to move towards an automatic right of written reply in civil and criminal appeals. I wrote, with qualified support, about Justice Brown’s decision in Prism Resources last year (Any Last Words? Time for a Right of Written Reply in Appellate Advocacy) and felt compelled to also address Justice Nordheimer’s decision in Goberdahn.
Goberdahn involved an appeal from a decision dismissing the appellants’ motion to stay a wrongful dismissal action in favour of arbitration. In its responding factum on the appeal, the respondent took the position that section 7(b) of the Arbitration Act, 1991, S.O. 1991, c. 17 precluded an appeal from the motion judge’s decision dismissing the request for a stay. In response to this argument, the appellants sought leave from the court to file a reply factum to address that jurisdictional question.
In his decision on the motion, Justice Nordheimer noted the appellant relied heavily on Justice Brown’s earlier decision in Prism Resources for the proposition that “there is a strong presumption that leave to file a reply factum should be granted.”
Justice Nordheimer was unconvinced. He noted that there remained no right of reply in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, despite Justice Brown’s call for an amendment to the Rules just over a year earlier. Justice Nordheimer continued: “I do not share my colleague’s enthusiasm for imposing what is, in essence, a judicial amendment to the Rules,” which would create an automatic right of written reply in all appeals.
Justice Nordheimer explained that the principal reason appellate courts provide for oral argument is to allow the panel hearing the appeal to canvass any uncertainty or questions regarding the parties' positions. Similarly, oral argument also allows an appellant to address any new issues or positions taken in a respondent’s factum.
Notably, Justice Nordheimer did not dismiss the importance of effective written advocacy and, in fact, emphasized it. He remarked that there is “no doubt that written submissions are very important on any appeal” but cautioned that there are limits to the usefulness of any advocacy, oral or written: “More does not always mean better.”
Justice Nordheimer also observed that a problem caused by the routine filing of reply facta is the foreseeable corresponding requests from respondents to file “sur-reply” materials. At some point, Justice Nordheimer remarks, this back and forth must end, noting that he saw no compelling reason to depart from the traditional point at which the back and forth ends with one factum each for the appellant and the respondent.
Thus, unlike Justice Brown’s view set out in the Prism Resources decision that reply facta would be welcome and appropriate in most cases, Justice Nordheimer concluded in Goberdahn that parties should only seek leave to file a reply factum in exceptional circumstances and noted that this was not one of those cases, dismissing the motion.
No doubt there will be more to say about the importance of written advocacy and the appropriate context (and content) for reply factums, but the final word, it seems, is not yet written.
