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Legal Writing: The B.C. Court Of Appeal Provides Guidance On The Drafting Of Factums – Trials & Appeals & Compensation

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Lawyers are taught that effective legal writing is clear,
focused and succinct. The B.C. Court of Appeal will require careful
adherence to those principles, even where proceedings are complex.
The test remains the same: a party seeking to file a lengthy factum
must provide “a convincing explanation as to why extra space
is necessary”.

In the recent decision, Equustek Solutions Inc. v.
2022 BCCA 194 (Equustek), Justice Hunter
emphasized the importance of conciseness in legal writing and
summarized key first principles on factum drafting. Equustek
reminds appellants that factums should provide an outline of the
arguments that will be advanced, not a full argument of the appeal.
The Court’s commentary adds to the growing jurisprudence on
written advocacy and provides guidance that applies equally to all
legal writing.

Factual background

In Equustek, the appellants brought an application for
leave to file an 82-page factum, almost three times the normal
30-page limit.

The appellants’ argument for an 82-page factum was that the
trial being appealed was highly complex. The underlying trial
lasted 73 days and involved claims in breach of confidence, passing
off, breach of copyright and conspiracy. The issue at trial was
whether a product sold by the defendants was copied from the
plaintiffs’ product, which required a significant amount of
technical evidence.

The appellants also argued that the primary basis for the appeal
was that the trial judge failed to consider material evidence
supporting their claim. Therefore, the appellant argued, the appeal
required a more detailed review of the evidence than usual.

The issue before the Court of Appeal on this application was
whether the appeal was more than “reasonably complex”,
therefore requiring a factum of more than 30 pages to allow the
appellants to fairly present their appeal and, if so, what length
of factum should be permitted.

The B.C. Court of Appeal’s decision

Justice Hunter did not grant leave for the appellants to file an
82-page factum but allowed them instead to file a 40-page factum
due to the complicated factual matrix of the case.

The decision provides important principles for litigators
drafting factums. Justice Hunter stated that the main purpose of a
factum is to provide the court and the opposing parties with an
outline of the arguments that will be advanced and a list of the
authorities to be cited.

In particular, Justice Hunter stated that an appellant’s
factum serves two purposes:

  • First, it communicates to the respondent the issues in dispute
    so that the respondent can prepare a responsive factum.

  • Second, it acquaints the court with the issues in dispute and
    the appellant’s position on those issues.

A factum also provides a helpful structure of the
appellant’s position and authorities if the court reserves

Justice Hunter distinguished an appeal factum from post-trial
written argument, where it is necessary to marshal all the evidence
to persuade the trier of fact to make specific conclusions. In a
factum, the statement of facts should not be a summary of the
evidence, but rather of the facts that were found by the trial
judge or are otherwise not in dispute. This is because appeals
typically proceed on those undisputed facts, unless an appellant
can convince the court that there was either no evidence to support
a factual finding or the judge committed an obvious factual error
that was material to the outcome.

Justice Hunter emphasized the importance of conciseness, stating
that the 30-page limit is meant for complex cases, and that simpler
cases can (and probably should) be dealt with in much shorter
factums. Conciseness, Justice Hunter said, can be thought of as
necessary for the proper administration of justice to ensure that
appeals are properly focused while, at the same time, enabling the
court to efficiently manage its business.

Update: The 30-page limit for a factum still
applies after the transition to the new BC Court of Appeal
B.C. Reg. 120/2022. While the page-limit is no
longer set out in the Rules (formerly in Rule 22), it appears in
the updated factum template.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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