



COURT OF APPEAL FOR ONTARIO

CITATION: OZ Merchandising Inc. v. Canadian
    Professional Soccer League Inc., 2020 ONCA 532

DATE: 20200824

DOCKET: M51656 (C67488)

Roberts J.A. (Motion Judge)

BETWEEN

OZ Merchandising Inc.

Plaintiff

(Appellant/Moving Party)

and

Canadian
    Professional Soccer League Inc.,

Eastern
    Ontario District Soccer Association
,

The
    Ontario Soccer Association
,

Canadian
    Soccer Association
,

Canadian
    Soccer League Inc.,

CSL
    Association Inc., Ira Greenspoon,

Vincent
    Ursini,
Cary Kaplan
and Stan Adamson

Defendants

(
Respondents
/
Responding
    Parties
)

Rose A. Faddoul and Nicholas Karnis, for
    the moving party

Jordan Goldblatt, for the responding
    parties, Eastern Ontario District Soccer Association and the Ontario Soccer
    Association

Frank Costantini, for the responding
    party, Canadian Soccer Association

No one appearing for the responding
    party, Cary Kaplan

Heard: August 14, 2020 by
    videoconference

REASONS
    FOR DECISION

[1]

The moving party seeks leave of the court to
    file a factum exceeding 30 pages. Its draft factum surpasses 500 pages in
    length, over 300 of which are appendices. While it is now prepared to move the
    appendices to a compendium and reduce the number of pages of its factum, the
    moving party submits that it cannot reduce the draft factum to less than about
    125 pages and that any lesser extension would not be of any utility. As part of
    its factum, the moving party wishes to rely on proposed fresh evidence. It
    claims that the issues are complex, the trial was long, and it cannot properly
    argue its numerous grounds of appeal without the lengthy factum that it seeks
    leave to serve and file.

[2]

The responding parties oppose the moving partys
    motion. They say that they would not object to a factum of 40, 50 or even 60
    pages in the circumstances of this case but that the moving partys proposed
    factum is excessively long. If the moving party is permitted to file a factum
    exceeding 30 pages, the responding parties ask that they be granted the
    same extension, to which the moving party agrees.

[3]

I am not persuaded that the requested extension
    to the moving partys factum is warranted.

[4]

I start with some general, well-established
    principles. The
maximum
length of appellate facta is 30 pages: Practice
    Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March
    1, 2017), at 11.7(4). The 30-page limit is not a suggestion or a starting
    point. It has been set with a view to reasonably complex cases  simpler cases
    can often be dealt with adequately in much shorter factums:
Chief Mountain
    v. Canada (A.G.)
, 2012 BCCA 69, 317 B.C.A.C. 50, at paras. 6-7;
R. v.
    Van Wissen
, 2016 MBCA 108, at para. 5. These rationales are reflected in
    the provisions of rr. 61.11 and 61.12 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, that stipulate the need for
concise
statements of
    the facts and law in the facta submitted by appellants and respondents. 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:
Brown v. Lowe
, 2000 BCCA
    635, at paras. 1, 4. See also:
R. v. Port Chevrolet Oldsmobile Ltd.
,
    2008 BCCA 443, 262 B.C.A.C. 51, at para. 5;
Saint John (City) v. Saint John
    Firefighters Association
,
International Association of Fire
    Fighters
,
Local 771
(2010), 362 N.B.R. (2d) 327 (C.A.), at
    para. 10.

[5]

Relief from compliance with the 30-page limit for
    appellant and respondent facta requires leave of the court:
Rules of Civil
    Procedure
,

rr. 61.09(4), 61.12(8); Practice Direction, at 11.7(5).
    Leave is exceptional and granted sparingly in special circumstances:
Saint
    John Firefighters Association
, at paras. 12-13;
Canada v. General
    Electric Capital Canada Inc.
, 2010 FCA 92, 403 N.R. 114, at para. 5. 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:
General Electric Capital Canada Inc.
, at para. 5. As Paciocco
    J.A. observed in
Michail v. Ontario English Catholic
    Teachers Assn.
(4 September 2018), Toronto, M49554 (Ont. C.A.)
, at
    para. 15, 
[T]
he 30-page limit
    for facta is imposed to keep appeals manageable, efficient and cost-effective
    for the litigants and the court (cited by Brown J.A. in
Michail v. Ontario
    English Catholic Teachers Association
, 2018 ONCA 950, at para. 6.).

[6]

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:
Port Chevrolet Oldsmobile Ltd.
, at
    para. 5;
Saint John Firefighters Association
, at para. 10. See also:
JJM
    Construction Ltd. v. Sandspit Harbour Society
, [1998] B.C.J. No. 3383 (B.C.C.A.),
    at para. 6.

[7]

The fact that the appeal raises important and
    complicated questions of fact or law, there are numerous grounds of appeal, the
    underlying proceedings have been ongoing for many years, or the trial was
    lengthy, does not automatically justify an extension of the page limit. These
    circumstances inform many appeals that are nevertheless contained within the
    30-page factum limit:
General Electric Capital Canada Inc.
, at para. 5;
Talwar v. Grand River Hospital Board of Directors
, 2018 ONSC 6112
    (Div. Ct.), at para. 36;
Van Wissen
, at para. 5.

[8]

With these principles in mind, I turn to the
    circumstances of the present motion. While I give significant weight to the
    assessment of counsel for the moving party that a longer factum is required,
    the difficulty is that the materials and submissions simply contain general
    statements about the complexity of the legal and factual issues, the number of
    grounds in the notice of appeal, and the fresh evidence that the moving party
    will seek leave to file in order to present its narrative of events. From my
    review of the materials, I am unable to discern the necessity of an extended
    factum for the moving party to properly present its appeal. To permit the
    moving party to file a 125-page factum would be oppressive to the respondents
    and unhelpful to the panel hearing this appeal.

[9]

Moreover, as the moving party fairly acknowledged,
    there is much repetition in the factum, as well as references to the trial
    transcripts and other materials, that could be easily excised. Furthermore, as
    the responding parties submit, portions of the proposed factum relate to
    matters not before the trial judge, including fresh evidence and a request to
    change the venue of the trial. I see no reason why, with concise writing and
    thoughtful editing, the moving party cannot present its appeal within the
    30-page limit prescribed by the Practice Direction, at 11.7(4).

[10]

I finish with the moving partys submission that
    the 60 or so grounds in its notice of appeal cannot be fairly treated within
    the 30-page limit. This is not a determinative consideration. The moving partys
    choice to raise numerous grounds of appeal does not serve as the kind of
    exceptional circumstance that justifies exceeding the 30-page limit. Such a
    shotgun approach to appellate advocacy was decried by Chartier J.A. (as he
    then was) in
R. v. Henderson (W.E.)
, 2012 MBCA 93, 284 Man. R. (2d)
    164, at para. 51, when faced with a request for an extended factum in an appeal
    where counsel raised 23 grounds of appeal. His comments, at para. 50, are
    apposite here:

Courts expect counsel to be of assistance in
    the appellate process. They expect counsel not to waste the courts valuable
    resources by simply dumping the appeal on the courts lap. Counsel are expected
    to have sufficient confidence to prioritize their arguments, to separate the
    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.

Disposition

[11]

For these reasons, I dismiss the motion.

[12]

I grant the moving party four weeks to revise
    its factum.

[13]

Following receipt of the moving partys factum,
    the responding parties shall serve and file their facta within the time limits
    prescribed by the
Rules of Civil Procedure
.

[14]

The responding parties are entitled to their
    respective partial indemnity costs of this motion each in the amount of
    $1,700.00, inclusive of disbursements and applicable taxes.

L.B.
    Roberts J.A.


