



COURT OF APPEAL FOR ONTARIO

CITATION:
Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4

DATE: 20220105

DOCKET: M53057 (C69430)

Brown
    J.A. (Motion Judge)

BETWEEN

Prism
    Resources Inc.

Plaintiff/Moving Party

(Respondent/Responding
    Party)

and

Detour
    Gold Corporation

Defendant/Responding Party

(Appellant/Moving Party)

Zohar R. Levy and Harry Skinner, for
    the moving party

Joseph Groia, David Sischy and Bethanie
    Pascutto, for the responding party
[1]

Heard: in writing

ENDORSEMENT

[1]

The
appellant, Detour Gold Corporation, moves
    for leave to file a reply factum of five pages, a draft copy of which was
    included in its motion record. The motion is unopposed.

[2]

Written advocacy is the foundation upon which Ontarios 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 partys position.

[3]

Notwithstanding the foundational role of written appellate advocacy,
    both our 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.

[4]

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.

[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 respondents 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
    respondents factum on the cross-appeal that the respondent  wearing its
    appellants 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 respondents 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 respondents 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
    courts 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 panels 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
    MedalCriminal 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.

[20]

The
    motion is granted.

David Brown J.A.





[1]

Counsel
    for the responding party made no written submissions on this motion.


