Concise Factums Required

A factum at the Court of Appeal is limited to a maximum of 30 pages. If a party wishes to submit a lengthier factum, leave must be sought from the Court of Appeal. Leave is rarely granted. 

In OZ Merchandising Inc. v. Canada Professional Soccer League Inc., 2020 ONCA 532, the appellant initially prepared a factum that was over 500 pages in length, including over 300 pages of appendices. The appellant agreed to reduce the number of pages in its factum to around 125 pages.

The appellant argued that the issues involved in the appeal are complex and that it could not properly argue its numerous grounds of appeal without a lengthy factum.

Justice Roberts went over the applicable principles:

• The 30 page limit is not a suggestion or a starting point. It has been set with a view to apply to reasonably complex cases. Simpler cases can often be dealt with adequately in much shorter factums.
• The purpose of the page limit is to focus counsel on the issues and to not have a factum that goes on and wanders.
• Leave to file a lengthier factum is exceptional and granted sparingly in special circumstances.
• While a party must be permitted to present its whole case effectively, this does not take away from the requirement of conciseness and the duty of efficiency to the court.
• The overarching question is whether the extension is required in the interests of procedural fairness and justice to advise the other side of the issues in dispute so it can prepare properly for the appeal and assist the court.

Justice Roberts dismissed the appellant’s motion to exceed the 30 page limit, stating that to permit the appellant to file a 125 page factum would be oppressive to the respondents and unhelpful to the panel hearing the appeal.

The fact that the appellant chose to raise around 60 grounds of appeal was not an exceptional circumstance to justify exceeding the 30 page limit.

Justice Roberts referred to a decision of the Manitoba Court of Appeal, wherein it was stated that courts expect counsel to be of assistance in the appellate process and to not waste the court’s valuable resources. Counsel are expected to have sufficient confidence to prioritize their arguments and to provide fully developed arguments on what should be the real points for appellate review.

In summary, counsel are required to provide concise statements of the facts and law in a factum. The 30 page limit for factums at the Court of Appeal is very rarely departed from.