Nov 4, 2020

Civil Litigation: Factum Length in the Court of Appeal

Sagkeeng v Government of Manitoba et al, 2020 MBCA 100 (CanLII)

Keywords: Factum Length; COVID-19; Written Hearing

Synopsis:

The Applicant files an application for judicial review of a decision granting a licence to the Respondent, Manitoba Hydro, which would permit the construction of the Manitoba-Minnesota Transmission Project on their traditional and ancestral territory. The Judge finds the application for judicial review to be premature and also dismisses on the merits. The Applicant files an appeal of the Judge’s decision.

As a result of COVID, the Chief Justice of Manitoba, the Chief Justice of the Court of Queen’s Bench and the Chief Judge of the Provincial Court take measures – including disposition of matters without an oral hearing – “to protect the health and safety of justice system participants, while maintaining access to justice”. (See para. 2).

The Court of Appeal determines the Applicant’s motion can be determined on the basis of written materials. The Applicant brings a motion to increase the length of its factum from 30 to 47 pages. The Court of Appeal dismisses the motion.

Importance:

In light of COVID, many “hearings” (but far from all; among other examples, the Yukon Territorial Court issued a Nov. 2 Notice to the Profession, immediately re-starting in-person hearings) in jurisdictions across Canada are hearing cases by way of filed written materials (have always considered that a curious oxymoron unique to our particular profession, “heard in writing”, when clearly nobody heard a thing). Responding to the unique challenges this litigation scenario poses, the Applicant herein sought more written space to express their argument.

In Manitoba, Rule 29(1) of the Court of Appeal Rules, Man Reg 555/88R governs the content and length of a written factum. The Court of Appeal emphasized the repeated use of the word “concise” in Rule 29 (see para. 7) and cited OZ Merchandising Inc v Canadian Professional Soccer League Inc, 2020 ONCA 532, a recent decision in which Roberts J.A. set out a number of key principles applicable on a request to extend factum length, including:

  • that while the typical 30 pages is meant to accommodate “reasonably complex cases”, many cases can be “dealt with adequately in much shorter factums”;
  • that Leave to file a factum exceeding 30 pages is an exceptional request, to be granted sparingly in special circumstances only; and
  • that there is an overarching “requirement of conciseness” and “duty of efficiency” for counsel preparing factum materials. (See para. 8).

Although the Court of Appeal agreed with the Applicant’s assertion that the issues were important, and that they did not take “a shotgun approach to appellate advocacy”, it was not persuaded that this case was sufficiently complex to warrant reasons exceeding the 30-page maximum. (See paras. 12-13).

The key takeaway from this decision is a simple reminder that brevity and concision are important litigation values. There’s nearly always a way to make your point in fewer words. At Supreme Advocacy LLP we collaborate with lawyers hoping to solve this issue on a daily basis – if you’re looking for an extra set of eyes to bring your legal writing into (short) focus, feel free to get in touch. We also “ghostwrite” (appropriate, given Halloween was last weekend).

Counsel for the Applicant: Kate Kempton and Corey Shefman (Olthuis, Kleer, Townshend LLP, Toronto)

Counsel for the Respondents: Sarah Bahir (Department of Justice, Manitoba, Winnipeg)