Nuff Said: Rejecting The Call For A Right Of Written Reply In Appellate Advocacy

• Jurisdiction: Canada
• Law Firm: Lerners LLP
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Unfair/ Wrongful Dismissal, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Author: Mr Jacob Damstra
• Published date: 24 May 2023

In a recent Court of Appeal for Ontario motion decision in Goberdahn v Knights of Columbus, 2023 ONCA 269, Justice Nordheimer dismissed a request for leave to file a five-page reply factum. He rejected a recent call by Justice Brown of the Court of Appeal for Ontario in Prism Resources Inc. the Detour Gold Corporation, 2022 ONCA 4, to move towards an automatic right of written reply in civil and criminal appeals. I wrote, with qualified support, about Justice Brown's decision in Prism Resources last year (Any Last Words? Time for a Right of Written Reply in Appellate Advocacy) and felt compelled to also address Justice Nordheimer's decision in Goberdahn.

Goberdahn involved an appeal from a decision dismissing the appellants' motion to stay a wrongful dismissal action in favour of arbitration. In its responding factum on the appeal, the respondent took the position that section 7(b) of the Arbitration Act, 1991, S.O. 1991, c. 17 precluded an appeal from the motion judge's decision dismissing the request for a stay. In response to this argument, the appellants sought leave from the court to file a reply factum to address that jurisdictional question.

In his decision on the motion, Justice Nordheimer noted the appellant relied heavily on Justice Brown's earlier decision in Prism Resources for the proposition that "there is a strong presumption that leave to file a reply factum should be granted."

Justice Nordheimer was unconvinced. He noted that there remained no right of reply in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, despite Justice Brown's call for an amendment to the Rules just over a year earlier. Justice Nordheimer continued: "I do not share my colleague's enthusiasm for imposing what is, in essence, a judicial amendment to the Rules," which would create an automatic right of written reply in all appeals.

Justice Nordheimer explained that the principal reason appellate courts provide for oral argument is to allow the panel hearing the appeal to canvass any uncertainty or questions regarding the parties' positions. Similarly, oral...