“Conciseness is not merely a pious wish: it is mandated.” Court of Appeal denies request for leave to file a longer factum




In McLeod Estate v Cole et al, 2021 MBCA 80, the plaintiffs, the administrators of an estate, commenced an action over the deceased’s capacity to sell several parcels of land, whether he received fair market value for the properties, and whether he received proper representation form his real estate agents. The five-week trial produced voluminous written submissions, hundreds of exhibits, and heard over a dozen witnesses. The notice of appeal included 17 grounds of appeal. The plaintiff filed for leave to file a 43-page factum, well in excess of the 30-page limit mandated by the “Court of Appeal Practice Guidelines”.

Mainella J.A. observed that the modern appellate court was a “paper jungle” (para 1) and that every Canadian jurisdiction places a maximum page limit on facta to ensure that appeals are focused and efficient (para 10). Therefore, “conciseness is not merely a pious wish: it is mandated” (para 9).

Principles Relating to the Discretion to Grant Leave to File a Lengthier Factum

Mainella J.A. identified the following four principles applicable to the plaintiffs’ motion:

  1. The moving party has the onus of demonstrating a reasonable basis for a lengthier factum. Mainella J.A. suggested that a copy of the proposed factum should be provide so that the judge can make an informed decision (para 12).
  2. While the opinion of counsel, for both the moving party and the respondent should be given “significant weight”, the Court has the final say (para 13).
  3. There are no automatic exceptions to the page-limit, regardless of the complexity or the importance of the matter appealed (para 14).
  4. Leave to file a lengthier factum is rarely granted. Mainella J.A. stated that the overriding question was whether the extension is required in the interests of procedural fairness and justice (para 15).

Plaintiffs Request for Leave is Denied

The plaintiffs argued that because the trial judge had committed so many palpable and overriding errors, a lengthier factum was necessary to assist the Court in making a more thorough than usual review. Mainella J.A. disagreed (para 20).

Mainella J.A. explained that modern appeals are writing-centred and all appellate judges have the advantage of reading a legal “libretto” before oral arguments. Appellate judges are intimately familiar with the record and written submissions before the appeal begins. (para 21-23).

A factum should “illuminate the essence of an appeal as opposed to concealing it” (para 21). Where a factum should be concise, informative, and user-friendly, the plaintiffs’ factum was longwinded and overburdened with discussions of evidence, instead of clearly identifying the palpable and overriding errors (para 24). Mainella J.A. stated that it will often be enough for plaintiffs to simply state the nature of the error, with a pinpoint to the casebook or record. The plaintiffs had not prioritized their best arguments and were not entitled to take a “shotgun approach to appellate advocacy” (para 25-27).

Mainella J.A. discerned that the reasons the plaintiffs wanted to file a lengthier factum was to make arguments about the evidence so that the Court would retry the factual findings. This was not an appropriate basis for leave. 30-pages was sufficient. The plaintiffs’ motion was dismissed. (para 28-29)

April 14, 2022
McLeod Estate v Cole et al, 2021 MBCA 80