Separating wheat from the chaff: an ode to page limits

October 5, 2020 Sydney Osmar Litigation Tags: , , 0 Comments

How many pages are too many pages? In what circumstances will the Court of Appeal grant leave to a party to file a factum exceeding 30 pages in length? A recent decision of the Court of Appeal addresses these questions within the context of a request for leave to file a 500 page factum (300 of which comprised of appendices).

In OZ Merchandising Inc. v Canadian Professional Soccer League Inc. et. al., the proceedings had been ongoing for many years, the trial was lengthy, and there were numerous grounds of appeal (60 or so), however, the Court failed to see the justification for a factum outside the prescribed 30 page limit. In coming to its decision, the Court highlighted the well-established principles and relevant considerations, when determining whether or not an extension of the facta page limit should be granted. These points are summarized below:

  • The maximum length of appellate facta is 30 pages. This is not a suggestion or a starting point;
  • The maximum page length has been set with a view to reasonably complex cases, such that simpler matters can and should be dealt with in much shorter factums;
  • The purpose of the 30 page limit is to “focus counsel on the issues and not have a factum that goes on, and in fact, wanders”;
  • Leave of the court is required to file a factum beyond the 30 page limit;
  • Leave is exceptional, granted sparingly and only in special circumstances;
  • While a party must be permitted to present its whole case effectively, this does not detract from the need for 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 to assist the division of the Court that hears the appeal to deal effectively with the issues”; and
  • The fact that an appeal raises important and complicated questions of facts or law, that there are numerous grounds for appeal, or that the proceedings have been ongoing for many years, do not automatically justify an extension of the page limit.

In concluding, the Court cited Chartier J.A (as he then was) in R v Henderson (W.E.), 2012 MBCA 93, stating that “Courts expect counsel to be of assistance to the appellate process…Counsel are expected to have sufficient confidence to prioritize their arguments, to separate wheat from the chaff and to provide fully developed arguments on what should be the real points for appellate review. Not only is this in the best interests of their clients; it is in the best interests of the administration of justice.”

In keeping it concise, thanks for reading!

Sydney Osmar

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