In an Ontario Court of Appeal decision released last week,[1] Brown J.A. granted the Appellant’s motion for leave to file a reply factum of five pages, and recommended that the Rules of Civil Procedure be amended to permit appellants to file brief reply facta, without having to seek leave.

Currently, Rule 61.16 requires appellants to bring a motion for leave to file a reply factum (Ontario’s criminal rules of appellate procedure have similar requirements for appeals that are not in writing, as well). According to Justice Brown in Prism Resources Inc. v. Detour Gold Corporation [Prism Resources], this Rule causes inefficiency and unnecessary costs:

  • On a motion for leave to file a reply factum, the appellant must, at minimum, file a motion record and factum – that’s right, a factum for permission to file a factum, even where the motion is unopposed or on consent. All of this involves costs to the appellant and occupies judicial resources;
  • Appeal Court panels are often presented with reply arguments at the oral hearing. As Justice Brown states, this frequently requires longer oral hearing allocations, which would be shortened with a properly briefed written record;
  • When appellants do not file a reply factum and instead present their reply arguments orally at the hearing, the Court is prevented from gleaning in advance a firm understanding of the significant arguments to be made.

There are many legitimate reasons why an appellant might want to file a reply factum on appeal, including the appellant wishes to address something raised in the respondent’s appeal factum, the appellant wishes to clarify its articulation of an argument in anticipation of the oral hearing, or the appellant wishes to reply to arguments raised by a respondent in a cross-appeal. In Prism Resources, the appellant sought to file a reply factum in response to an argument advanced in the respondent’s appeal factum, which was not dealt with by the motion judge, thus not addressed by the appellant in its main factum. As noted by Justice Brown, filing a reply factum in any of these situations would serve the goal of ensuring Appellate Judges can firmly understand the key arguments before the oral hearing and that the parties are appearing before a fully briefed court.

Prism Resources is a important decision in recognizing the importance of appellants’ right to written reply in both civil and criminal appeals. Should the Rules of Civil Procedure be amended as recommended by Justice Brown, this will have important implications for counsel appearing before the Court of Appeal.

This article was authored by a former Partner with Miller Thomson. If you have any questions, please reach out to a member of our Commercial Litigation group.

[1] Prism Resources Inc. v Detour Gold Corporation, 2022 ONCA 4.