Good afternoon and Happy New Year to all our readers!

There were only two civil decisions released by the Court of Appeal for Ontario the week of January 3, 2022.

In Prism Resources Inc. v. Detour Gold Corporation, the Court granted the appellant's motion for leave to file a reply factum in response to an argument advanced in the respondent's appeal factum, which was not dealt with by the motion judge, thus not addressed by the appellant in its main factum. The Court commented that the fact that an appellant must bring a motion to file a proper reply factum was a gap in the rules that should be filled.

The other decision was as brief costs endorsement in Extreme Venture Partners Fund I LP v. Varma.

I would like to remind our readers to continue to consult Civil Procedure & Practice in Ontario (CPPO). Now completing its first year since initial publication, The CPPO is a free online resource jointly published by the University of Windsor and CanLII. CanLII is a not-for-profit organization operated by the Federation of Law Societies of Canada and is dedicated to assisting with access to justice through the free and open dissemination of the laws of Canada to all members of the public. The CPPO was written by a team of 135 leading litigators and experts in Ontario civil procedure, led by Professor Noel Semple of Windsor Law School. I had the privileged of co-writing two chapters to CPPO dealing with Rules 54 and 55 (Directing a Reference and Procedure on a Reference). Professor Semple is in the process of updating CPPO to December 2021.

CPPO will serve as a guide to Ontario's Rules of Civil Procedure, Courts of Justice Act, and Limitations Act, and will be accessible not only to practitioners, but to members of the public. It contains not only the text of all these rules and statutory provisions, but also commentary and annotations to all the relevant case law applying and interpreting each rule and section. To access Civil Procedure & Practice in Ontario, please click here, and make sure to bookmark the site for easy access.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

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

Keywords:  Civil Procedure, Appeals, Factums, Reply, Bernstein v. Peoples Trust Company, 2019 CarswellOnt 20144 (C.A.), Justice David Doherty, "G. Arthur Martin Medal—Criminal Justice Award" (delivered at The Criminal Lawyers' Association Fall Conference, 16 November 2019), For the Defence, 40:3 (14 July 2020)

Short Civil Decisions

Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 5

Keywords:  Appeals, Costs

CIVIL DECISIONS

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

[Brown J.A. (Motion Judge)]

COUNSEL:

Z. R. Levy and H. Skinner, for the moving party

J. Groia, D. Sischy and B. Pascutto, for the responding party

Keywords:  Civil Procedure, Appeals, Factums, Reply, Bernstein v. Peoples Trust Company, 2019 CarswellOnt 20144 (C.A.), Justice David Doherty, "G. Arthur Martin Medal—Criminal Justice Award" (delivered at The Criminal Lawyers' Association Fall Conference, 16 November 2019), For the Defence, 40:3 (14 July 2020)

FACTS:

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 appellant wishes to address an argument advanced in the respondent's 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. The motion is unopposed.

ISSUES:

(1) Should the appellant be granted its motion for leave to file a reply factum?

HOLDING:

Motion granted.

REASONING:

(1) Yes.
In the present case, the request by Detour Gold to file a reply factum of five pages was a reasonable one.

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 party's position. Nonetheless, both the civil and criminal rules of appellate procedure generally do not afford an appellant the right to file a factum in reply to arguments made by a respondent in its appeal factum. The Rules of Civil Procedure compel an appellant to bring a motion for leave to file a reply factum. A moving party must file a motion record and factum, and may file a book of authorities, for an estimated cost of about $5,000 in the present case.

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. There are many legitimate reasons why an appellant might want to file a reply factum. 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. Five pages will more than suffice in the overwhelming majority of cases.

The result should be 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 at the start of the hearing. Further, it will 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.

SHORT CIVIL DECISIONS

Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 5

[Hourigan, Huscroft and Coroza JJ.A.]

COUNSEL:

J. Lisus, C. Smith, N. Campion, V. Calina and J. C. Mastrangelo, for the appellants A. V., S. M., Varma Holdco Inc. and Madra Holdco Inc.

A. Brodkin, D. E. Lederman and D. Cappe, for the appellants C. P. and El Investco 1 Inc.

W. Kim, M. McPhee, A. Gyamfi and R. Sider, for the respondents

Keywords:  Appeals, Costs

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