The Plaintiff Respondent, Monarch, applied to the Court of Appeal for an Order directing the Defendant Appellant, CIBC, to file a replacement Factum which excluded certain paragraphs, and to file a replacement Extract of Key Evidence excluding certain pages. Monarch alleged that CIBC’s Factum constituted an inappropriate introduction of new evidence on Appeal. Monarch applied for direction, pursuant to Rule 516, regarding whether a single Justice of Appeal may edit the contents of a Factum.

Justice Watson noted that Rule 516 was soon to be replaced, and considered prior authority. His Lordship stated that the editing of a Factum could be a procedural function which would enable a single Justice to make a determination. However, a single Justice should be wary that the editing of a Factum may substantively impact the Appeal such that the determination of whether to edit the Factum would amount to a final determination of an issue. In those circumstances, a single Justice, if not required to decide, should defer to a panel because the effect of editing is too significant to be considered “incidental to an appeal”. Justice Watson was satisfied that the issue should be deferred to the panel who would hear the Appeal since it was not appropriate for a single Justice to edit the Factum or supporting material.