Case: Murray v. Toronto-Dominion Bank, 2026 ONCA 81 (CanLII)
Keywords: reply factum; Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4
Synopsis:
Mr. Murray seeks leave to file a reply factum. The request is opposed by Toronto-Dominion Bank. (See para. 1). The appeal is “factually complex”; Mr. Murray’s draft reply factum covers 6 issues. (See para. 12). The Court of Appeal per Lauwers J.A. permits Mr. Murray to serve and file a reply factum that is strictly limited to particular paras. and issues from his draft “without any additional text”. (See para. 14).
Importance:
Justice Lauwers has helpfully summarized the law governing reply factums in civil appeals. The decision affirms that,
- there is no automatic right to file a reply factum; and
- reply factums are “useful to a panel…where the respondent’s factum raised a new issue, which could include an argument made in the court below but not advanced by the appellant”. (See paras. 2-3).
Justice Lauwers referred to 3 prior cases in which the Court of Appeal permitted a reply factum to be filed: Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4, Boyer v. Callidus Capital Corporation, 2024 ONCA 761, and Sternberg v. Cresford Capital Corporation, 2024 ONCA 283. (See para. 2).
Importantly, however, Lauwers J.A. emphasized the need for caution in permitting reply factums generally. Citing Nordheimer J.A.’s reasons in Goberdhan v. Knights of Columbus, 2023 ONCA 269 and language from Brown J.A. in Prism, the point being made is that the circumstances in which a reply factum will be justified are “exceptional”. (See para. 7). While a reply factum might permit the appellant to present the panel with a “more precise articulation of its argument”, Lauwers J.A. found there would be few cases where that rationale would not apply – in other words, that this rationale could provide “a new automatic reply”. (See paras. 8-9). For Lauwers J.A., this would be unhelpful:
Experience suggests that the more precise articulation would add to the panel’s reading burden but would not materially or commensurately advance the panel’s understanding of the case…In my view, there is no need to introduce, into a well-functioning system that permits the occasional exception, a new automatic reply practice that would add material, permit lawyers to repeat their arguments (which they often do), or even encourage lawyers to strategize about ways to subtly split their cases. (See paras. 8-9).
Ultimately, Lauwers J.A. confirmed that permitting a reply factum is a matter of discretion to be applied in exceptional cases. (See para. 10).
How then does one improve the odds of filing a strategically helpful reply factum? First, of significant practical importance, Lauwers J.A. indicates that on a motion for leave to file a reply factum “it is good practice to provide the motion judge with the draft factum”. (See para. 11). Similar advice has been provided by the Court of Appeal for Ontario in the case of a motion for intervention. (See Vento Motorcycles, Inc. v. United Mexican States, 2024 ONCA 480 at para. 16).
Second, be maximally helpful to the panel. Note the “reading burden” described by Lauwers J.A. at para. 8, and endeavour, however strategically possible, to alleviate that burden. Although not mentioned by Lauwers J.A. herein, might a well-crafted oral hearing compendium (e.g., as described by Brown J.A. in Robertson v. Ontario, 2023 ONCA 454) obviate the need for a reply factum altogether?
The Moving Party: Stuart Cameron Murray, acting in person
Counsel for the Responding Party: Hannah Young (McCarthy Tetrault, Toronto)