Appeals: The right to file a reply factum, The Lawyer’s Daily (January 10, 2022)

Appeals: The right to file a reply factum, The Lawyer’s Daily (January 10, 2022)


(this article originally appeared in the Lawyer’s Daily on January 10, 2022)

By Nikolay Y. Chsherbinin

An appeal is a statutory right. No right to appeal exists except as provided by statute and/or until leave has been granted. Any right of appeal is governed, and limited, by the statutory framework that creates it. In Ontario that framework is convoluted.

While appellants and respondents can file written arguments of equal length, the rules generally do not afford an appellant a right to file a reply factum to arguments made by a respondent in its appeal factum. Instead, the Rules of Civil Procedure compel an appellant to bring a motion for leave to file a reply factum. This motion adds an extra step in litigation and forces the appellant to incur additional cost, even when the relief sought is on consent or unopposed. It is also taxing on the Ontario Court of Appeal judges, who rightfully lament that there is a need to reform the rules of appellate procedure. A recent case in point is Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4 (Detour Gold), where the Court of Appeal for Ontario urged the Civil Rules Committee to amend the rules to permit the automatic filling of a brief reply factum in all appeals.

In Detour Gold, the appellant brought a motion before a single judge of the Ontario Court of Appeal to file a reply factum of five pages. There, it wished to address an argument advanced in the respondent’s appeal factum that was also made by the respondent in the court below, but not dealt with by the motion judge in her reasons. The motion was unopposed and granted.

Writing for the Court of Appeal, Justice David Brown reminded that written appellate advocacy is “the main tool by which the parties educate a panel about the issues on an appeal.” Notwithstanding the foundational role of written advocacy, civil rules of appellate procedure fail to “ ‘complete the circle’ on written advocacy” by not affording appellants an automatic right to file a reply factum.

He noted 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’ argument before the oral hearing, thereby preventing the panel from immediately getting into the “meat” of the key issues. He added 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.” As to how brief, the Court of Appeal explained: “it strikes me that five pages would more than suffice in the overwhelming majority of cases.”

Justice Brown’s recommendation makes profound practical sense, because it would directly benefit the parties, their counsel, the appellate process and the Court of Appeal.

There are many legitimate reasons why an appellant may wish to file a reply factum, including:

  • it would result in a more efficient use of the time for oral argument by allowing the court to get into “the meat of the key issues”;
  • it would save litigants unnecessary costs for bringing a motion for leave. Ponder this: rule 61.14 compels a moving party to file a motion record and factum. As part of the motion record, it would also be required to file draft reply. Diligent appellants could also file a book of authorities to assist the court. These are needlessly costly undertakings, which in Detour Gold, the Court of Appeal estimated would add about $5,000 in costs, even though the motion was unopposed;
  • an appellant on a cross-appeal may wish to respond to an argument set out in the respondent’s factum on the cross-appeal that the respondent, wearing its appellant’s hat on the main appeal, did not raise;
    an appellant might think that it had failed to express a key argument in its appeal with sufficient clarity and would like to present the Court of Appeal’s panel with a more precise articulation of its argument for their consideration prior to the oral hearing or, inter alia; and
  • an appellant may wish to do what Detour Gold did in this case.

Those of us who have appeared before the Ontario Court of Appeal know full well that its culture expects that panel members will have read all written materials and be well briefed about an appeal before hearing oral argument. In addition, prior to the hearing, the Court of Appeal may send to an appellant, on its own, a courtesy letter, which is dreaded by counsel, alerting to potential problems with, for example, jurisdiction in the appeal.

As Justice David Doherty adroitly observed in his 2019 remarks accepting the G. Arthur Martin Criminal Justice Medal from the Criminal Lawyers’ Association, (and whose views Justice Brown adopted in Detour Gold), the parties and counsel are entitled to a “hot court” when they go to the Ontario Court of Appeal. By a “hot court” Justice Doherty meant “a court that has fully read the material, fully understands the arguments and is ready to get into the meat of them.” Amending the rules to permit a brief reply factum would further modernize and streamline the court’s appeal processes and improve access to justice. As a practical consequence, it would allow counsel more time to speak with the Court of Appeal’s panel by addressing the questions that they wish to pose on the key issues of concern to them, instead of educating them on the basics of the appeal.

On May 6, 2019, during the “14th Annual Straight From The Bench Conference,” Justice David Brown stressed: “[t]here is a need to reform, in a radical way, Ontario’s public court civil adjudication system.” Justice Brown is not wrong. Take, for example, the question of jurisdiction and appeal routes. Ontario’s civil court system consists of three courts: the Ontario Court of Appeal, Divisional Court and Superior Court of Justice, each of which has specified appellate jurisdiction in civil matters. This structure makes it difficult to determine appellate rights and appeal routes that, in part, depend on whether the challenged order is final or interlocutory. The determination of whether an order is final or interlocutory is a legal minefield for both novice and experienced counsel.

In this regard, the Ontario Court of Appeal has been particularly vocal on the need to reform. For example, in Shinder v. Shinder, 2017 ONCA 822, addressing the persisting confusion associated with the final/interlocutory order distinction, the Appeal Court stressed with a profound foresight and genuine concern: “Unless the problem is addressed in some such fashion, this situation will continue to occur and parties will be put to avoidable expense.”

In 2021, in 1476335 Ontario Inc v. Frezza, 2021 ONCA 732, the same court continued to lament:

“There is absolutely no excuse for such confusion to continue. Simple “bright line” appeal route solutions are available. I would hope that at some point in the near future the Ontario Legislature will awake and address this far-too-long-outstanding stain on our civil justice system. In my respectful view, the Legislature needs to enact legislation that creates an unambiguous “bright line” explaining when an appeal lies to the Divisional Court and when it lies to the Court of Appeal for Ontario. The current final/interlocutory dividing line is an expensive, time-wasting anachronism.”

The latter rationale applies to a motion for leave to file a reply factum.

Arguably, no appellate lawyer would/should oppose such a motion. Not only would it ensure a cost-efficient appeal process based on a fulsome record, it would eliminate a need for the Court of Appeal to apologize to appellants for needlessly incurred costs, much as Justice Brown thoughtfully did in Detour Gold: “It is unfortunate that our rules have imposed unnecessary cost on Detour Gold for its reasonable request, and for that I apologize.”

While the Court of Appeal is devoid of power to legislate, it is, nevertheless, a forum where practical policies are made. The appellate bar “hears” them. It is hoped that the Civil Rules Committee would heed the Court of Appeal’s loud and persistent pleas for reform.

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