(See our previous posts on the McKesson transfer
The Court of Appeal stated that the lower court's recusal
reasons "depart from the norm", and were a "new,
material development " in the appeal and "have become
part of the real issues at stake". The Court stated that it
was neither clear cut nor obvious that the new ground raised by the
taxpayer would fail. Further, there were no reasons to refuse the
entry of the new ground into the appeal.
The Court of Appeal also ordered that a Supplementary Appeal
Book be filed, which shall contain the Tax Court's recusal
reasons and the Court of Appeal's Order on the motion.
Finally, the Court of Appeal allowed the taxpayer to file a
Supplementary Memorandum of Fact and Law, and the Crown to file a
responding memorandum. Interestingly, the Court of Appeal limited
the length of the memorandum to no more than 20 pages. The Court of
 In the circumstances, 20 pages
is generous. Parties normally make all of their written submissions
for all grounds of appeal in less than the 30 page limit in Rule
70. And many of those appeals are more complex than this one.
However, in this case, the new ground is somewhat novel and the
circumstances are somewhat unusual, so I am prepared to grant the
appellant some leeway.
 The difference between what the
appellants propose in page length and what I am willing to grant is
nine pages. Some might wonder, "What's the big deal about
 Unnecessarily lengthy, diffuse
submissions are like an unpacked, fluffy snowball. Throw it, and
the target hardly feels it. On the other hand, short, highly
focused submissions are like a snowball packed tightly into an
iceball. Throw it, and the target really feels it. Shorter written
submissions are better advocacy and, thus, are much more helpful to
 Structures that lead to
repetition, over-elaboration of arguments, block quotations, and
rhetorical flourishes make submissions diffuse. Simple but
strategic structures, arguments presented only once and compactly,
tight writing that arranges clinical details in a persuasive way,
and short snippets from authorities only where necessary make
submissions highly focused. The former dissipates the force of the
argument; the latter concentrates it.
 If the parties can make their
submissions on the new ground in fewer than 20 pages, so much the
* * *
No date has been set for the hearing of the full appeal.
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