Date: 20100412
Docket: A-1-10
Citation: 2010 FCA 92
Present: STRATAS
J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
GENERAL
ELCETRIC CAPITAL CANADA INC.
Respondent
REASONS FOR ORDER
STRATAS J.A.
[1]
The appellant moves for an order permitting it
to file a memorandum of fact and law that exceeds the thirty page limit set out
in subrule 70(4) of the Federal Court Rules, S.O.R./98-106.
[2]
The appellant wishes to file a memorandum that
is fifty-five pages long. The respondent consents to the relief sought. Although
this motion is proceeding on consent, this court must still consider whether to
exercise its discretion in favour of granting this relief.
[3]
The appellant submits that this appeal “raises
important and complicated questions.” The appellant also cites the length of
the trial and the large number of witnesses in the court below. The appellant
says that its factum, almost double the normal page limit, will “assist the
Court” and “will allow for a shorter oral hearing than would otherwise be
required.”
[4]
In this appeal, the appellant raises three
grounds of appeal: errors of law, reviewable errors in the trial judge’s
fact-finding, and denials of procedural fairness. These alleged errors, the
appellant says, have “many facets, all requiring explanation, examples and a
summary of the law in the relevant area.” Further, the appellant suggests that
the alleged denials of procedural fairness must be illustrated using lengthy
excerpts from trial transcripts.
[5]
In considering the appellant’s motion, I took
into account a number of factors:
(a) Subrule 70(1) sets out the requirements for a
memorandum of fact and law. It mentions the word “concise” three times. This
suggests that leave to exceed the normal thirty page limit should be granted
sparingly. “Special circumstances” must be present, along with specific
demonstrations of need: Pfizer Canada Inc. v. Canada (Minister of Health), 2006 FC 937, 53 C.P.R.(4th) 187 at paragraphs 16-17 per
Prothonotary Lafrenière.
(b) To get relief that is sparingly granted, the
affidavit offered in support should engage in demonstration, not just
assertion. The appellant’s affidavit does mainly the latter, not the former.
For example, it simply asserts “complexity”, without providing any examples of
complexity. It simply asserts that there are alleged procedural errors and
reversible errors in fact-finding, offering sweeping generalities rather than
specific examples. The same can be said for the notice of appeal and the written
representations on this motion: absent are any illustrations or examples of
particular alleged errors that might have given the Court a flavour of the
complexity of the appeal. In essence, the material before the Court asserts the
appellant’s opinion that a much longer memorandum is needed and invites the
Court to ratify that opinion. But the Court’s role under subrule 70(4) is not
ratification: it has to conduct an informed assessment of whether it should
grant a sparingly-granted exception based on special circumstances that have
been demonstrated to exist in the appeal.
(c) No doubt, significant weight should be given
to the assessments of counsel for the moving party and the responding party,
particularly where, as here, the appellate counsel are skilled and experienced.
Nevertheless, this Court must be supplied with sufficient, particularized information
so that it can properly and independently evaluate the complexity of the issues
in the appeal, the need for an exception to the page limit, and just how great
an exception should be permitted.
(d) Many appeals in this Court raise “important
and complicated questions.” That alone does not necessarily justify a
relaxation of the page limit. Memoranda well within the thirty page limit are almost
always filed in appeals with important and complex questions. These memoranda
manage the complexity by carefully and strategically selecting and synthesizing
the detail in the appeal, distilling everything to its very essence.
(e) The best commentators on the topic of written
advocacy underscore the importance of brevity, achieved through selection,
distillation and synthesis: see, for example, Justice John I. Laskin, “Forget
the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive
Factums” (1999) 18 Adv. Soc. J. No. 2, at pages 3-12 and Justice Marvin A.
Catzman, “The Wrong Stuff: How to Lose Appeals in the Court of Appeal” (2000)
19 Adv. Soc. J. No. 1 at pages 1-5.
(f) A paramount principle that guides the
Court’s discretion under subrule 70(4) is the need for procedural fairness: a
party must be permitted to present its whole case effectively. I do accept that
submissions about reversible errors in fact-finding and procedural errors often
require more detailed development and exposition. In addition, based on the
reasons for judgment of the trial judge, I do accept that the facts of this
case seem to be significantly more intricate and complex than those of many other
cases and that this Court would benefit from a longer memorandum. Therefore, a
relaxation of the thirty page limit is warranted in this appeal. However, I am not
persuaded at this time that fairness requires that the appellant be permitted
to file a memorandum with a length almost double the normal page limit.
(g) The appellant pointed to the need to include
lengthy quotations from transcripts. Lengthy quotations from transcripts to
develop its submissions are not always necessary. The judges preparing for this
appeal will engage in significant pre-hearing preparation and, in some cases, a
transcript reference may be all that is needed. I also note that the appellant
did not demonstrate that there was any great complexity concerning the law on
procedural error and fact-finding error, the areas of law relevant to two of
the three main grounds of appeal.
(h) In this motion, the appellant did not file a
draft memorandum. When a party has prepared a draft memorandum longer than the
thirty page limit and believes that it cannot fairly reduce its length further,
it should file its draft memorandum as part of the affidavit supporting the
motion: see Pfizer Canada Inc., supra, at paragraph 19. The Court
can examine the draft with a view to assessing whether it should grant an
exception under subrule 70(4), and not with a view to assessing the merits of
the appeal. Such an approach empowers the Court to make well-informed, concrete
assessments. I note that this approach is standard practice in some other
appellate courts: see, for example, Court of Appeal for Ontario, Practice Direction Concerning
Civil Appeals in the Court of Appeal, October 7, 2003, paragraph 10.3(3).
[6]
In light of the foregoing and based on the
evidence placed before the Court, I conclude at this time that a relaxation of
the thirty page limit is warranted, but not to the extent that the appellant
seeks. I shall permit the appellant to submit a memorandum up to forty pages in
length, exclusive of the appendices required under rule 70. The appellant shall
be permitted to serve and file its memorandum within twenty days of the date of
the order.
[7]
If the appellant finds it absolutely impossible
to present its case effectively within that limit, I shall permit the appellant
to reapply to this Court within those twenty days, but only upon evidence
establishing that a longer memorandum is absolutely necessary in order to
present its case fairly and effectively. Neither party has sought its costs of
this motion and so none shall be awarded.
“David
Stratas”
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