Court of Appeal for Ontario

Date: 2023-06-23 Docket: COA-23-CV-0056

Before: Brown J.A. (Case Management Judge)

Between:

Kathryn Robertson by her estate representative Allison Gaanderse, Maurice Orchard by his estate representative Christina Kinder, Bernard Renaud by his estate representative Lori Renaud, Jean Patricia Pollock by her estate representative Pamela Christine Smith, Christina Kinder, Lori Renaud, Christine Smith and Allison Gaanderse Plaintiffs (Appellants/ Respondents by way of cross-appeal)

And:

His Majesty the King in Right of Ontario Defendant (Respondent/ Appellant by way of cross-appeal)

Counsel: Joel P. Rochon, Golnaz Nayerahmadi, Juela Xhaferraj, and Cerise Latibeaudiere, for the appellants/respondents by way of cross appeal Christopher Wayland and Jennifer Boyczuk, for the respondent/appellant by way of cross appeal

Heard: June 22, 2023 by video conference

Endorsement

Overview

[1] This is an appeal and cross-appeal from the December 20, 2022 certification decision of Belobaba J.: 2022 ONSC 5127. The plaintiffs seek certification of their action that alleges thousands of elderly residents in provincially-regulated long‑term care homes died from Covid-19 or sustained serious illness because of the gross negligence of the respondent, the Government of Ontario.

[2] The motion judge certified the proposed class action only on the negligence claim and only in respect of the acts or omissions of the Minister of Long-Term Care. The motion judge did not certify the tort cause of action in respect of the acts or omissions of the Minister of Health and Chief Medical Officer of Health. The motion judge also struck the causes of action based on breach of fiduciary duty and breach of s. 7 of the Canadian Charter of Rights and Freedoms.

[3] The appellants appeal those portions of the judgment that did not certify claims. The respondent Crown cross-appeals those portions of the judgment that certified claims; its cross-appeal has been transferred to this court from the Divisional Court.

[4] Counsel sought an appeal management conference. Prior to the conference, they submitted a joint proposal on the outstanding appeal management issues. I appreciate their co-operation in so doing.

Length of Factums

[5] The only major issues for consideration are linked: a request for permission to file long factums (up to 80 pages), coupled with a request for a long oral hearing (2.5 days or 10 hours of appeal hearing time).

[6] I regard appellate advocacy as containing two components: (i) first, educating an appeal panel about a case; and then (ii) persuading the appeal panel to one’s client point of view on the various grounds of appeal.

[7] The main forensic device by which an advocate educates and persuades appeal judges about a case is the written factum, which provides an intelligible pathway through the associated appeal record. A factum affords counsel the opportunity to undertake an unhurried, comprehensive education of the judges in the salient facts of the case, the relevant principles of law (which may or may not be contested), the application of those principles to the facts and – most importantly – an assessment of whether the judge below erred in making factual findings, selecting legal principles or applying legal principles to the facts. As well, the factum contains a strong persuasive component, which builds on the educational foundation undertaken in its earlier parts.

[8] Oral argument proceeds in front of a panel who already have spent time educating themselves about the issues on the appeal and a party’s “pitch” on each issue through their study of the written factum and the associated appeal record. Based on that process of pre-hearing study, the judges on the panel will have formed views about the case, either identifying issues raised by the appeal materials on which they intend to seek clarification from counsel at the hearing or regarding the merits of the appeal as a whole. Given that pre-hearing study by a panel, the goal of effective oral advocacy is to engage the panel in rational persuasion, primarily by clarifying and satisfying any reservations that the judges may hold about aspects of the positions advanced by counsel’s client regarding the decision below.

[9] Since the advocate’s task of oral persuasion takes place after their earlier task of educating and attempting to persuade a panel through the written factum and appeal record, oral persuasion should consume less time than written education and persuasion. Accordingly, on a significant, law-intensive appeal such as this one, I usually see merit in allowing parties to file factums that exceed the standard 30-page limit on the expectation that permitting longer factums should result in the quid-pro-quo of a shorter oral hearing.

[10] In their joint submission the parties request leave to each file factums on the appeal and cross-appeal of a combined length of up to 80 pages, together with 2.5 days of oral argument.

[11] Ordinarily, I would not regard that as an appropriate quid of longer factums in exchange for the quo of a shorter hearing. There really are only three legal issues that lie at the heart of this appeal: negligence; fiduciary duty; and s. 7 of the Charter. However, counsel point out that the argument before Belobaba J. took a total of six days which, given Justice Belobaba’s practice of applying a very focused approach to oral hearings, suggests that there is much for a panel to mull over in this appeal.

[12] Accordingly, I grant the parties leave to file factums of up to 50 pages each on the appellants’ main appeal and factums of up to 30 pages each on the respondent’s cross-appeal.

Length of the Oral Hearing

[13] While I think assigning 2.5 days, or 10 hours, for the oral argument would be excessive, I am persuaded that the oral hearing should be scheduled for two full days. The appeal and cross-appeal will be heard on Monday, November 27 and Tuesday, November 28, 2023. The time for the oral hearing shall be divided equally between the two parties.

[14] The parties propose the following structure for the oral hearing: the appellants commence by making submissions on the main appeal; followed by the respondent’s argument in response on the main appeal and its submissions-in-chief for the cross-appeal; concluding with the appellant’s reply submissions on the main appeal and response on the cross-appeal. That strikes me as a reasonable approach. However, I make no specific order in that regard since the structure of the oral hearing ultimately will be for the panel to decide. Counsel may propose that structure at the start of the hearing.

Oral Hearing Compendium

[15] In an earlier decision, I expressed the view that our court should consider adopting the practice of accepting reply factums on appeals: Prism Resources Inc. v. Detour Gold Corp., 2022 ONCA 4. In a recent decision, my colleague, Justice Nordheimer, expressed a view to the contrary observing that “there are limits on the usefulness of any element of advocacy, whether written or oral. More does not always mean better”: Goberdhan v. Knights of Columbus, 2023 ONCA 269, at para. 5. A healthy debate.

[16] On the present appeal, the parties do not seek leave to file reply factums but they have indicated their intention to file Oral Hearing Compendiums pursuant to s. 26 of this court’s General Practice Direction Regarding All Proceedings in the Court of Appeal (2021). The General Practice Direction stipulates that the compendium may contain an “outline of 500 words or less of the party’s anticipated oral argument”.

[17] Experience shows that such “outlines” may take one of three forms. First, the outline may resemble a table of contents – often in bullet-point form – of the topics counsel anticipates addressing during oral argument. Second, an outline may function like a playbill, offering a synopsis of the points counsel intends to make in a “Summary of Act 1”, “Summary of Act 2”, “Summary of Act 3” … fashion. These two types of outlines are the ones most commonly seen. Their advocacy effectiveness is limited as they usually do not attempt to persuade the judge on any issue. They are more like a road-map of the path counsel hopes to follow at the oral hearing until, of course, the panel’s questions throw the road-map out the window.

[18] The third form of outline is not often seen but it constitutes the most effective use of the Oral Hearing Compendium as an advocacy tool. In it, counsel attempt to draft, within the outline’s word limit, the key paragraphs they would like to see in the panel’s reasons on each major issue. The third form of outline not only identifies the issues counsel intends to address but offers language explaining why the judge below did or did not err on each issue. It tries to plant in the minds of the panel the linguistic and analytical kernels for the disposition of an issue, which the panel can then water and transform into reasons accepting counsel’s position on the issue.

[19] I suspect this third form of “outline” is rare because it is a challenge to draft. Succinct writing is infinitely harder than filling up the 30 pages available in a factum. But, from an effective advocacy perspective, this third type of outline can operate in a most powerful fashion, providing the panel with tangible language and analysis they can quickly grasp and use, if they are persuaded to the position of counsel’s client.

[20] Of course, to act as a powerful advocacy tool, an Oral Hearing Compendium must find its way into the panel’s hands well before the hearing date so that the panel can read it, reflect on it, and prepare questions for counsel based upon it. The General Practice Direction calls for Oral Hearing Compendiums to be filed “in advance of an oral appeal hearing.” Unfortunately, in practice that too often translates into emailing the Oral Hearing Compendium to the court on the eve of the hearing or, in some cases, on the morning of the hearing. Such late delivery strips the document of its persuasive potential. To operate as an effective “putting-the-client’s-best-foot-forward” kind of advocacy tool, an Oral Hearing Compendium must be delivered to the court at least one week before the oral hearing.

[21] Accordingly, if the parties in the present case intend to file Oral Hearing Compendiums, which I would encourage them to do, they must deliver them no later than 5 p.m. on Monday, November 20, 2023. Given the significant legal issues at play on this appeal, I extend the permissible length of the outlines to 1,500 words each.

Timetable for the Delivery of Appeal Materials

[22] On the consent of the parties, the appeal materials shall be delivered in accordance with the following timetable:

• The appellants shall perfect their appeal by July 21, 2023;
• The respondent shall deliver responding materials for the main appeal and their factum for the cross-appeal (or a single factum not to exceed 80 pages in total) by September 22, 2023; and
• The appellants shall deliver their responding factum for the cross-appeal by October 27, 2023.

[23] As mentioned, Oral Hearing Compendiums shall be delivered by November 20, 2023.

[24] If the parties require any further assistance in readying this appeal for hearing, they may arrange an appeal management conference with me through the court’s Civil Appeal Scheduling Unit.

“David Brown J.A.”