LATRACE v WARKENTIN BUILDING MOVERS VIRDEN INC

The Applicants applied to the Court to rescind the direction of a Case Management Officer (“CMO”).

First, the Applicants sought to file a 60-page factum, significantly exceeding the 30-page limit pursuant to Rule 14.26(2)(a). Under Rule 14.73, a single Appeal Judge has the discretion to direct a deviation from the Rules with respect to the form or filing of documents, including the length of the factum and filing deadlines. Shaner J.A. confirmed the CMO’s decision and held that the Applicants’ factum could be no more than 35 pages. In doing so, the Court noted that extensions to factum page limits should be granted sparingly and only in exceptional circumstances. Complexity, a lengthy trial, a large record, numerous grounds of appeal, or lengthy reasons under appeal do not, on their own, justify an extension. The Court emphasized that factums must be concise and focused, and that an appeal is not an opportunity to re-argue the entire case.

The Applicants further requested permission to include their Trial briefs in their Appeal materials. The Court denied the request, citing Rule 14.27(1)(c), which prohibits the inclusion of trial briefs in a party’s extracts of key evidence, as an appeal is not an opportunity to repeat the trial.

The Applicant also sought permission to file an Affidavit respecting costs at Trial. The Court held that, because costs had not been argued before the Trial Judge, the Affidavit was considered new evidence. Pursuant to Rule 14.45, a party seeking to adduce new evidence on appeal must bring an application before filing its factum and before the deadline for doing so. Pursuant to Rule 14.38(2)(b), such an application must be heard by a full Appeal Panel, not by a single Judge. Therefore, Shaner J.A. dismissed this request, while noting that the Applicants could still apply to the Appeal Panel to admit the Affidavit as new evidence.

Lastly, Shaner J.A., on consent, granted the Applicants’ request to extend the deadline to file their factum.