Justice Brown calls for revised civil and criminal appellate rules to allow reply factums in appeals

Court says lack of reply factum prevents it from fully understanding disputes before verbal hearings

Justice Brown calls for revised civil and criminal appellate rules to allow reply factums in appeals
Chris Sewrattan is a lawyer at Sewrattan Criminal Lawyers.

In a recent decision, Ontario Court of Appeal Justice David Brown called for amending the civil and criminal appellate rules to allow for a reply factum on the premise that the court relies heavily on written submissions, and the revision would also save parties unnecessary costs.

In granting a motion for the appellant to file a reply factum in Prism Resources Inc. v. Detour Gold Corporation, Justice Brown wrote that “the request by Detour Gold to file a reply factum of five pages is a reasonable one. The request is unopposed. It is unfortunate that our rules have imposed unnecessary costs on Detour Gold for its reasonable request, and for that I apologize.”

The civil and criminal rules of appellate procedure fail to “complete the circle” on written advocacy because while both parties can file arguments, appellants do not have the right to file a reply made by a respondent in its appeal factum.

Justice Brown wrote that the absence of a right in the civil and criminal appeal laws to file a reply factum might prevent the court from fully understanding arguments before the oral hearing, and amending the rules would benefit both counsel and the bench and create efficient use of time for oral arguments by quickly getting delving into the critical issues at appeal.

That 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 if they wish. As to how brief, it strikes me that five pages would more than suffice in majority of cases.”

Justice Brown wrote that revising the rules would allow appellant counsels to prepare for oral arguments confident that their clients had the opportunity to fully partake in critical matters in the written materials considered by the bench before oral hearings.

“Our court’s culture expects that panel members will be well-briefed about an appeal before hearing oral argument. As a result, in all but the most complex of appeals the time for oral argument is best used not to educate the panel on the basics of the appeal but to address the questions panel members wish to pose on the issues of concern to them, based on their pre-hearing review of the written appeal record, especially the factums.”

Justice Brown also emphasized that motions cost money even when the relief sought is on consent or unopposed, and there are many legitimate reasons why an appellant might want to file a reply factum. For example, Detour Gold wished to speak to an argument in the respondent’s appeal factum raised in court but not dealt with by the motion judge in her reasons.

“Having read and reflected on the respondent’s factum, an appellant might think it failed to express a key argument in its appeal factum with sufficient clarity and like to present the panel with a more precise articulation of its argument.”

Criminal lawyer Chris Sewrattan says he is unsure if amending the rules would save costs. Legal aid funds many criminal appeals, and the budget does not contemplate a five-page reply factum, and Sewrattan says if the rules change, that might be an additional cost for criminal lawyers without compensation. “On the other hand, if there’s an argument worth making in reply, the lawyer would be making it in oral submissions and so I could see someone thinking of it as a positive.”

Justice Brown wrote that the motion would cost approximately $5,000, and if there was an amendment in the rules, Detour Gold could have saved the money, Sewrattan says. “If there’s a rule change, then there’s no motion. You file your material, and you’re done.”

Nonetheless, he says Justice Brown’s decision timing is curious because the court revised its rules for criminal appeals in the fall of 2021, which would have been the time to change the direction allowing reply factums.

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