Thursday, 6 January 2022

Advocacy for Better Advocacy: The Right to Reply Factums in Civil Cases

Should parties on civil appeals be permitted to file “Reply Factums” without seeking leave of the court?

In Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, Justice David Brown of the Court of Appeal for Ontario expressed his strong preference that they should.


Justice Brown’s reasons for decision were provided in response to an unopposed motion by Detour Gold Corporation, who is the appellant in a case currently pending before the Court of Appeal. I neither know, nor really care, what the case is about.

As Justice Brown explains in his reasons, “notwithstanding the foundational role of written appellate advocacy, both [Ontario’s] 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. Instead, the Rules of Civil Procedure compel an appellant to bring a motion for leave to file a reply factum, as Detour Gold has done: r. 61.16.”

Decision of the Court of Appeal for Ontario

In his persuasive reasons for decision, which I have deemed worthy of sharing notwithstanding their at best tangential relationship to employment law, Justice Brown writes the following:

[2] 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.

[5] Motions cost money, even when the relief sought is on consent or, as in the present case, unopposed. A moving party must file a motion record and factum: r. 61.16(4). As well, the moving party may file a book of authorities, as Detour Gold has done. What costs do such filing requirements impose on a moving party? From the materials filed before me, I would estimate about $5,000 in the present case. Is that a necessary or reasonable expense for the court to impose upon a party for relief that is unopposed?

[6] On the criminal appeal side, where an appeal is in writing the appellant may file a reply factum of up to 10 pages in length: Criminal Appeal Rules, r. 47(1). However, in all other appeals an appellant must apply for leave to file a reply factum, which a judge should only grant “in exceptional circumstances”: r. 40(8).

[7] There are many legitimate reasons why an appellant might want to file a reply factum:

(i) In the present case, the appellant wishes to address an argument advanced in the respondent’s appeal factum that was also made by the respondent below but not dealt with by the motion judge in her reasons. As a result, the appellant did not address the argument in its main factum;

(ii) 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: Bernstein v. Peoples Trust Company, 2019 CarswellOnt 20144 (C.A.), at para. 11;

(iii) Or, having read and reflected on the respondent’s factum, an appellant might think it had failed to express a key argument in its appeal factum with sufficient clarity and would like to present the panel with a more precise articulation of its argument for their consideration prior to the oral hearing.

[8] Indeed, the latter reason is advanced by some in the appellate Bar to counter calls for reducing the time allocated for oral argument in this court. They argue that since the rules do not afford their client an automatic right to file a reply factum, they are unable to fully inform the panel about their “take” on the respondent’s most important arguments until the day of the oral hearing. This gap in the rules, they contend, supports the need to maintain expansive oral argument time allocations.

[9] While I am not persuaded by that contention, I do see merit in the argument that permitting the automatic filing of a brief reply factum in all appeals would assist the panel to understand, before the oral hearing, precisely how the parties join issue on the key matters on appeal.

[10] The schedules of the judges of this court contain a significant amount of pre-hearing preparation time. Judges of this court use that time well. 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.

[11] In his 2019 remarks accepting the G. Arthur Martin Criminal Justice Medal from the Criminal Lawyers’ Association, my colleague, Justice David Doherty, gave a very good description of how a panel’s pre-hearing preparation using the written materials informs their expectations about how counsel will use the time allocated for oral argument. In his remarks, Justice Doherty said that he was adamant in the view that the parties and counsel are entitled to a “hot court” when they go into the Court of Appeal for Ontario. By a “hot court” he meant “a court that has fully read the material, fully understands the arguments and is ready to get into the meat of them”: Justice David Doherty, “G. Arthur Martin Medal—Criminal Justice Award” (delivered at The Criminal Lawyers’ Association Fall Conference, 16 November 2019), For the Defence, 40:3 (14 July 2020).

[12] 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’ arguments before the oral hearing, thereby preventing the panel from immediately getting “into the meat of them” at the start of the hearing.

[13] In my view, 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 so wish. As to how brief, it strikes me that five pages would more than suffice in the overwhelming majority of cases.

[14] Amending the rules to permit a brief reply factum would benefit both counsel and the Bench.

[15] 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.

[16] 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.

[17] 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.

[18] Amending the rules to permit a brief reply factum would also save the parties unnecessary costs, and designing a cost-efficient procedural process should be as much a goal for appellate courts as it is for the trial division.

[19] In the present case, 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.


Yes. Yes, yes, yes.

Can I do a better job of articulating why an automatic right of reply factums is warranted than Justice Brown? Probably not.

Justice Brown has always been a thought leader on how things can be done better. I always appreciate when he writes reasons for decision that explain why he disagrees with how things are, or “must” be done. This decision is an excellent example of shining the light on things unnecessary.

Contact Me

Did you find this post because you are considering an appeal of an Ontario employment law case? Looking for a lawyer to assist you with that matter? Contact me. I can be reached by email at or by phone at 613.238.6321 x233.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He is also a part-time professor at Algonquin College teaching Employment Law. He has previously taught Trial Advocacy for Paralegals and Small Claims Court Practice.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Image Credit: (c)\seb_ra

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