To Reply or Not to Reply? The Call for an Automatic Right to File a Reply Factum in Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4

  • February 02, 2022
  • Nancy Sarmento Barkhordari

Reply factums provide litigants an opportunity to respond to arguments raised or inaccuracies asserted by a party who is responding to a motion or application.  Notwithstanding the role of reply factums in the course of litigation generally speaking, there is no right of reply factum in appeals before the Court of Appeal for Ontario.  While appellants and respondents can file written arguments of equal length, the Rules of Civil 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. An appellant who is plagued with the need to file a written reply can, at their own expense, seek leave of a single judge of the Court of Appeal for Ontario to file a reply factum.  

One can think of a plethora of reasons why a reply factum should not be allowed in a system that incentivises oral arguments.  Amongst other things, the lack of a right of reply factum forces the parties to focus and prioritize their oral argument.  Moreover, an appellant who is met with an unanticipated argument or issue in the respondent’s material will have an opportunity at the hearing to address those issues. However, in a system that deems written advocacy 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,[1] it is a wonder why reply factums are not the regular course in appeals to the Court of Appeal for Ontario.   

The recent decision of Justice Brown in Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, discusses the foundational role of written advocacy in appeals, illustrates the many legitimate reasons why an appellant might want to file a reply factum, and offers an excellent viewpoint for an automatic right to file a brief reply.