The Litigator
The Litigator
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Court of Appeal judge endorses a right to reply factums for all appeals

In a recent motion by an appellant for leave to file a five-page reply factum, Justice David Brown of the Court of Appeal for Ontario went beyond just granting the motion. In particular, in Prism Resources v. Detour Gold Corporation, Justice Brown endorsed the right to file a brief reply factum in any appeal where the appellant deems it necessary. In his words:

“Written advocacy is the foundation upon which Ontario’s modern appellate advocacy process rests. Written advocacy is the main tool by which the parties educate a panel about the issues on an appeal and then attempt to persuade the panel to the party’s position.

Notwithstanding the foundational role of written appellate advocacy, both our civil and criminal rules of appellate procedure fail to ‘complete the circle’ on written advocacy. While appellants and respondents can file written arguments of equal length, the rules generally do not afford an appellant the right to file a factum in reply to arguments made by a respondent in its appeal factum.”

Justice Brown highlighted the many legitimate reasons why an appellant might want to file a reply factum, including where they wish to address an argument made by the respondent in the court below but not referenced in the lower court’s reasons, or where an appellant feels after reading the respondent’s factum that it has not been sufficiently clear in expressing a key argument.

In the opinion of Justice Brown,

“Amending the rules to permit a brief reply factum would benefit both counsel and the Bench.  Appellant counsel could prepare for oral argument confident that their clients have had the opportunity to fully and directly join issue on the key matters in the written materials considered by the panel before the oral hearing.  The Bench could prepare for oral argument confident that they fully understand how both sides join issue on the key matters. Their questions to counsel or the parties could be tailored appropriately. The result should be – dare I say – a more efficient use of the time for oral argument by allowing both counsel and the Bench to immediately “get into the meat” of the key issues on appeal.”

It remains to be seen whether the Rules will be amended to permit reply factums in all cases. In the meantime, appellants should not be shy about asking to file a reply factum in an appropriate case.

Kenneth A. Dekker
Affleck Greene McMurtry LLP

Kenneth A. Dekker

Kenneth Dekker, a partner of the firm, is a successful trial and appellate lawyer who is valued by his clients as a resourceful and practical litigation counsel.

Over more than two decades, Ken has litigated noteworthy cases in a range of fields that include class action defence, securities and broker-dealer litigation and regulatory defence, corporate and shareholder disputes (including oppression and winding up cases), defamation, civil fraud litigation, disputes over contracts, injunctions, professional liability litigation, employment litigation and cross-border litigation issues.

Ken has appeared before all levels of courts in Ontario, including the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court and the Court of Appeal for Ontario, as well as before the Supreme Court of Canada. Ken also represents and advises clients in regulatory matters before the Investment Industry Organization of Canada (IIROC), the Mutual Fund Dealers Association of Canada (MFDA) and the Ontario Securities Commission (OSC).

Ken has been ranked as Repeatedly Recommended for Securities Litigation by Lexpert, for Corporate and Commercial Litigation by Best Lawyers of Canada, and he has been given the highest available rating of AV, or pre-eminent, by his peers on Martindale-Hubbell.

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