A problem well-stated is half solved.
- Attributed to Charles Kettering (American inventor and engineer)
One of the shortest, but most important, parts of the factum is the statement of the issues. There will be differences between the issues at trial and on appeal. Provincial appellate courts are largely focused on error-correcting and thus, the focus of the issues must be on the error(s) that was made below. While the Supreme Court of Canada also corrects errors, its primary role is to provide lower courts with guidance on significant and important legal issues.
Under the Ontario Rules of Civil Procedure, every appellant's factum must contain "a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue".1
The statement of issues usually takes the form of a brief, numbered list of the issues that are raised on the appeal. The issues are typically framed in question format – for instance, "Did the trial judge err in holding that the police lacked reasonable and probable grounds to conduct a search of the accused's car?" Sometimes counsel will also provide a short answer to each issue after the question. For instance, the accused's lawyer might answer that question with a "No".
Although short, the statement of issues frames the terms of the debate. It tells the court what issues need to be addressed in order to resolve the appeal. It also provides the structure for the remaining argument that will follow.
Given the importance of the statement of issues, counsel should put a great deal of thought into what issues will be addressed on appeal and how those issues are framed.
Which Issues?
In the words of the Honourable John I. Laskin, most appeals have only one or two, or at most, three good issues.2 Counsel should seriously assess the merits of all possible grounds of appeal and only select the strongest arguments which have a real possibility of success.
One issue that is always addressed in factums on appeal is the standard of review. If the law on the standard of review is clear, then the issue can be addressed very briefly. Nevertheless, it is important for counsel to fully understand the court's jurisdiction and the scope of appellate review.3 If the standard of review is reasonableness, all issues will have to be framed with that in mind. In other words, you want to demonstrate to the court that there is something unreasonable about the decision under review.
There are significant risks with including too many issues. Too many issues can distract the court from your strongest points. In the Court of Appeal for Ontario, factums cannot exceed 9,200 words and 40 pages. If you include 10 issues, you will have very little time and space to fully develop each argument.
There is also a risk that the court will view the lawyer as throwing mud at the wall to see what sticks.4 This can undermine the lawyer's credibility with the court.
Respondents face an interesting choice when preparing their factum. The appellant has already prepared a factum, which includes a summary of the issues. However, the respondent might disagree with the issues chosen by the appellant or how the appellant framed those issues. What is a respondent to do?
Respondents can certainly reframe the issues if necessary or appropriate. For instance, if the appellant framed the issue in a slanted way, it would be entirely appropriate for the respondent to frame the issue in a more neutral way – or a way that reflects the respondent's theory of the case.5
While it is usually easier for the court to follow a respondent's factum if the respondent addresses the issues in the same order as the appellant, this is not always the best choice. If the appellant's factum is unclear or addresses too many issues, the respondent can help the court by restructuring and reframing the issues so that they are clearer and easier to understand.6
Framing the Issues
After counsel has determined which issues will be argued on the appeal, the next step is to determine how to frame those issues.
If possible, counsel should try to frame the issue precisely. This will allow the court to understand exactly what is at stake and why particular facts are relevant to the issues. For instance, rather than just asking whether the vendor is liable for breach of contract, a more precise framing of the issue would be whether the vendor who breached the contract in April 2020 is excused from liability because of the contract's force majeure clause.7
By framing the issue with precision, we can easily understand what facts are going to be the most important – the nature of the COVID-19 pandemic, the impacts of the pandemic in April 2020, the wording of the force majeure clause, etc.
In the words of Justice David M. Brown, a factum that does not define issues precisely takes the "Where's Waldo?" approach. The issue may poke its head out of a window, but is ultimately lost in the milieu of hundreds of people milling about the town's marketplace. Not surprisingly, the "Where's Waldo?" approach is one of Justice Brown's 7 ways to lose in the Court of Appeal.8
Order of Issues
Once counsel have selected and framed the one, two, or three issues, counsel has to decide the order in which to present them. Typically, the recommendation is to lead with the best argument. First impressions matter, are formed quickly, and are difficult to change.9 So unless your position makes more sense in a different order (perhaps due to the nature of the legal test), start strong!10
Footnotes
1. Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 61.11(1)(d).
2. "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999), at p. 13.
3. "Preparing the Factum". Kenneth L. Campbell. (July 2002), at p. 12.
4. "Some Factum Suggestions." Justices David Stratas, Kathy Feldman, and Janet Simmons. (August 2010), at p. 3.
5. "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999), at p. 10.
6. Some Factum Suggestions." Justices David Stratas, Kathy Feldman, and Janet Simmons. (August 2010), at p. 7.
7. "Know your reader's brain: What cognitive science teaches us about writing appellate factums". Dr. Michael Kiang, Lauralee Bielert, and the Honourable John I. Laskin. The Advocates' Society Journal (Spring 2023), at p. 8.
8. "How to lose an appeal in the Court of Appeal: The next generation". The Honourable Justice David M. Brown. The Advocates' Society Journal (Fall 2017), at p. 20.
9. "Know your reader's brain: What cognitive science teaches us about writing appellate factums". Dr. Michael Kiang, Lauralee Bielert, and the Honourable John I. Laskin. The Advocates' Society Journal (Spring 2023), at p. 6.
10. "Forget the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive Factums". The Honourable John. I. Laskin J.A.. The Advocates' Society Journal (Summer 1999), at p. 13.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.