COURT OF APPEAL SUMMARIES (August 24 – 28, 2020)OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532 (CanLII)
[Roberts J.A. (Motion Judge)]
Rose A. Faddoul and Nicholas Karnis, for the moving party
Jordan Goldblatt, for the responding parties, Eastern Ontario District Soccer Association and the Ontario Soccer Association
Frank Costantini, for the responding party, Canadian Soccer Association
Keywords: Civil Procedure, Appeals, Factums, Leave to Exceed 30 Page Limit, Rules of Civil Procedure, Rules 61.09(4), 61.11, 61.12, 61.12(8), Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March 1, 2017), s. 11.7(4), 11.7(5), Chief Mountain v. Canada (A.G.), 2012 BCCA 69, 317 B.C.A.C. 50, R. v. Van Wissen, 2016 MBCA 108, Brown v. Lowe, 2000 BCCA 635, R. v. Port Chevrolet Oldsmobile Ltd., 2008 BCCA 443, Saint John (City) v. Saint John Firefighters’ Association, International Association of Fire Fighters, Local 771 (2010), 362 N.B.R. (2d) 327 (C.A.), Canada v. General Electric Capital Canada Inc., 2010 FCA 92, Michail v. Ontario English Catholic Teachers’ Assn. (4 September 2018), Toronto, M49554 (Ont. C.A.), Michail v. Ontario English Catholic Teachers’ Association, 2018 ONCA 950, JJM Construction Ltd. v. Sandspit Harbour Society,  B.C.J. No. 3383 (B.C.C.A.), Talwar v. Grand River Hospital Board of Directors, 2018 ONSC 6112 (Div. Ct.), R. v. Henderson (W.E.), 2012 MBCA 93
The appellant sought leave to file a factum of just under 125 pages after initially serving a factum 500 pages in length, over 300 of which were appendices.
Should the appellant be granted leave to exceed the 30 page limit for the length of facta?
No. The maximum length of appellate facta is 30 pages. The 30-page limit is not a suggestion or a starting point. It “has been set with a view to reasonably complex cases – simpler cases can often be dealt with adequately in much shorter factums”. The Rules stipulate the need for concise statements of the facts and law in the facta submitted by appellants and respondents. The purpose of the 30-page limit is “to focus counsel on the issues and not have a factum that goes on, and in fact, wanders”.
Relief from compliance with the 30-page limit for appellant and respondent facta requires leave of the court. Leave is exceptional and granted sparingly in special circumstances. While a party must be permitted to present its whole case effectively, this does not take away from the requirement of conciseness and the duty of efficiency to the court. The 30-page limit for facta is imposed to keep appeals manageable, efficient and cost-effective for the litigants and the court. 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”. The fact that the appeal raises important and complicated questions of fact or law, there are numerous grounds of appeal, the underlying proceedings have been ongoing for many years, or the trial was lengthy, does not automatically justify an extension of the page limit. These circumstances inform many appeals that are nevertheless contained within the 30-page factum limit.
While the Court gave significant weight to the assessment of counsel for the moving party that a longer factum was required, the difficulty was that the materials and submissions simply contained general statements about the complexity of the legal and factual issues, the number of grounds in the notice of appeal, and the fresh evidence that the moving party will seek leave to file in order to present its narrative of events. The Court was unable to discern from a review of the materials before it the necessity of an extended factum for the moving party to properly present its appeal. To permit the moving party to file a 125-page factum would be oppressive to the respondents and unhelpful to the panel hearing this appeal. As the moving party fairly acknowledged, there was much repetition in the factum, as well as references to the trial transcripts and other materials, that could be easily excised. Furthermore, as the responding parties submit, portions of the proposed factum relate to matters not before the trial judge, including fresh evidence and a request to change the venue of the trial. The Court saw no reason why, with concise writing and thoughtful editing, the moving party could not present its appeal within the 30-page limit prescribed by the Practice Direction. The moving party’s submission that the 60 or so grounds in its notice of appeal cannot be fairly treated within the 30-page limit was not a determinative consideration. The moving party’s choice to raise numerous grounds of appeal does not serve as the kind of exceptional circumstance that justifies exceeding the 30-page limit. Such a “shotgun approach to appellate advocacy” was to be decried 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.