Court of Appeal Enforces Page Limits, Rules that Long Briefs are Exceptional
In McLeod Estate v. Cole et al, the Manitoba Court of Appeal denied the plaintiff’s application to file a factum that exceeded the page limit prescribed under the Court’s Practice Guidelines. Relying on principles from across Canada, the Court provided insight into when and how appeal courts will exercise their discretion to allow litigants to file factums that exceed prescribed page limits.
McLeod Estate involves a dispute between administrators of Edward McLeod’s estate (the “Estate”) and the professionals that assisted Mr. McLeod with the sale of three parcels of land (the “Land”) prior to his death. At trial, the Estate claimed that Mr. McLeod lacked the mental capacity to sell the Land, that he was improperly represented in the real estate deals by his advisors, and that he did not receive fair market value for the Land.
Over a five-week trial, 212 exhibits were filed, 18 witnesses gave evidence, and 488 pages of written submissions were received. The trial transcript itself ballooned to 2,951 pages. In the end, the trial judge was unable to substantiate the Estate’s allegations and, in a 138-page written decision, dismissed the action. The Estate appealed.
The Estate moved for leave to file a 43-page factum, 13 pages longer than that permitted by the Court’s Practice Guidelines (the “Guidelines”). Counsel for the Respondents took no position on the motion other than, if granted, that they be given an equal page limit.
The Court’s Decision
A. Factum Length Restrictions Are Necessary
The Court cited its Guidelines and Rule 29(3) of the Court of Appeal Rules, which mandate a 30-page page limit for factums and give the Court authority to review and reject factums of excessive length. Similar restrictions form part of the practice of every appellate court in Canada. The Court noted that such page restrictions facilitate the proper administration of justice by ensuring that appeals are properly focused. This, in turn, allows the court to efficiently manage its business.
B. Principles for Exercising Discretion to Allow Lengthy Factums
The Court referred to four principles that are to be considered when deciding whether to grant leave to file a factum longer than is typically permitted:
- The moving party must demonstrate, not merely assert, a reasonable basis for a lengthier factum. In practice, this involves submitting the proposed factum to the chambers judge so that an informed assessment can be undertaken.
- Significant weight should be given to the opinions of counsel, both moving and responding. But the final decision rests with the Court.
- The fact that a question is important or complicated does not require a court to grant an exception to the standard length restrictions. Complicated appeals are common. Indeed, the standard restrictions reflect the reality that appellate litigation involves consolidating complex analysis into a concise argument.
- Leave to file a lengthier factum is an exceptional remedy that is sparingly granted in special circumstances. The question at this stage is “whether the extension is required in the interests of procedural fairness and justice ‘to advise the other side of the issues in dispute so it can prepare properly for the appeal and to assist the division of the Court that hears the appeal to deal effectively with the issues’”.
Applying the above principles, the judge considered the oral submission of counsel, the trial judge’s decision, the notice of appeal, the proposed draft factum (the “Factum”), and the plaintiffs’ memorandum of argument on the motion.
In oral submissions, the plaintiff submitted that due to the significant amount of errors the trial judge made, this case would require the Court to engage in a more thorough analysis of the record than usual. The Court rejected this argument on the basis that litigants can expect that appellate judges will be intimately familiar with the record and written submissions at the appeal hearing.
The plaintiff also submitted that this was an exceptional case because the trial judge preferred the evidence of the defendants on every contested factual issue when he could have instead accepted the plaintiff’s evidence. The Factum reflected this concern—the majority of its 43 pages challenged the trial judge’s findings of fact as to mental capacity, professional advice, and the fair market value of the Land. Rejecting this argument, the Court criticized the Factum for making extensive arguments about the evidence in attempt to retry factual findings, which is not an appropriate basis for leave to file a lengthier factum. The “mass of detail” about the evidence heard at trial was repetitive and unlikely to help the Estate’s appeal. The Estate’s focus should have instead been on clearly identifying the specific factual errors made by the trial judge. Rather than additional pages, the Court found that the Factum simply required reorganization and a reprioritization of the arguments emphasized.
Despite counsel’s submissions and the extensive record in the court below, the Court concluded there was nothing exceptional about the nature of the appeal or the questions raised by it that warranted a lengthier factum. Given the complexity of the appeal, the normal page limit of 30 pages was sufficient. Accordingly, the Court dismissed the motion and ordered the Estate to file a factum of no greater than 30 pages within 10 days.
McLeod Estate reminds litigants and counsel that appellate courts will only permit parties to file factums that exceed the prescribed page limits in exceptional circumstances. Length restrictions are imposed to ensure appeals are properly focused. Important and complex issues or an extensive record in the court below are not enough to justify an extension. Litigants must demonstrate compelling reasons why the court should exercise its discretion to allow a lengthier factum.
McLeod Estate v. Cole et al., 2021 MBCA 80
Date of Decision: September 23, 2021
 McLeod Estate at para. 2.
 McLeod Estateat para. 3.
 McLeod Estate at paras. 5-8.
 McLeod Estate at para. 10.
 McLeod Estate at para. 12.
 McLeod Estate at para. 13.
 McLeod Estate at para. 14.
 McLeod Estate at para. 15.
 McLeod Estate at para. 16.
 McLeod Estate at para. 20.
 McLeod Estate at para. 22.
 McLeod Estate at para. 20.
 McLeod Estate at para. 19.
 McLeod Estate at paras. 23, 28.
 McLeod Estate at para. 24.
 McLeod Estate at paras. 23-24.
 McLeod Estate at paras. 25-27.
 McLeod Estate at para. 31.