Executive Summary: Key Legal and Evidentiary Issues

• Applicants sought to exceed the 30-page factum limit prescribed by Alberta Rules of Court r 14.26(2)(a), requesting 60 pages for their appeal

• Permission to extend factum page limits requires exceptional circumstances beyond complexity, lengthy trials, or multiple grounds of appeal per OZ Merchandising principles

• Rule 14.27(1)(c) prohibits including trial briefs in extracts of key evidence, as appeals focus on identifying errors rather than re-arguing the case

• New evidence on costs requires a formal application under r 14.45 to be heard by the appeal panel, not a single judge

• The underlying dispute involved property damage from a building move, with prior litigation establishing the applicability of the Consumer Protection Act

• Court confirmed the Case Management Officer's decision, permitting only a 35-page factum while granting the time extension on consent

Background of the dispute

Dean LaTrace and Darlene LaTrace brought an appeal following a trial concerning damages sustained during a building move by Warkentin Building Movers Virden Inc. At trial, the applicants were awarded approximately $211,000 for damage to property, while the respondent was awarded $39,000 in contract damages. The trial lasted over 20 days and included testimony from eight expert witnesses. Prior to this trial, a summary trial had been held to determine the applicability of the Consumer Protection Act, RSA 2000 c C-26.3, where the summary trial judge determined the Consumer Protection Act applied in the circumstances. This was upheld on appeal in Latrace v Warkentin Building Movers Virden Inc, 2021 ABQB 297, aff'd 2021 ABCA 333.

The procedural applications

The applicants filed multiple applications with the Court of Appeal of Alberta. They requested permission to file a 60-page factum, exceeding the standard 30-page limit under the Alberta Rules of Court. They also sought to file written arguments submitted at trial (trial briefs), file an affidavit respecting costs at the trial level, and extend the deadline to file their factum by one month. The respondent consented to the application to extend the deadline for the applicants to file their factum but took no position on the remaining applications.

The Case Management Officer's rulings

On December 1, 2025, the applicants wrote to the Case Management Officer (CMO) requesting permission to file a 180-page factum. The CMO declined the request on the basis that it was premature, as the appeal record had not yet been filed. Subsequently, the applicants filed the appeal record. On December 12, 2025, they again asked the CMO to permit them to file a longer factum, this time 60 pages. They also requested permission to file copies of trial briefs and an affidavit respecting trial costs. The CMO denied the requests to file the trial briefs and the affidavit. With respect to the trial briefs, she pointed out that under r 14.27(1)(c) parties are prohibited from including trial briefs in their extracts of key evidence. With respect to the affidavit on costs, the CMO ruled that it should be the subject of a new evidence application under r 14.45. With respect to the length of the factum, the CMO granted the applicants permission to file a factum 35 pages in length.

The applicants' arguments for extended pages

The applicants planned to use 5.75 pages to set out the facts, issues, and standard of review. The remaining 54.25 pages of the proposed factum would be used to explain nine interrelated issues, namely, the application of the Consumer Protection Act; contract formation, including the parole evidence rule; causation; expert evidence on structural damage; quantum of damages; mitigation; betterment; adverse inferences related to disclosure; a mid-trial site visit; mid-trial reports; and costs. The applicants argued that the increased factum page limit was necessary due to the complexity of the issues, the size of the record, the length of the trial, and the length of the reasons for judgment (about 60 pages) under appeal. Darlene LaTrace expanded on these issues in her affidavit.

The Court's analysis on factum length

Justice Karan M. Shaner applied the principles from OZ Merchandising Inc v Canadian Professional Soccer League Inc, 2020 ONCA 532, which establish that the maximum length for appellate facta is "not a suggestion or a starting point" but has "been set with a view to reasonably complex cases." Leave to file a factum exceeding the page limit is an exceptional request, to be "granted sparingly in special circumstances" only. The Court noted that the fact that the appeal raises important and complicated questions of fact or law, there are numerous grounds of appeal, the underlying proceedings have been ongoing for many years, or the trial was lengthy, does not automatically justify an extension of the page limit. The Court further emphasized that appeals are not an opportunity to re-argue the underlying action before different judges; rather, they are focused on identifying and, if necessary, correcting errors.

Ruling on trial briefs and costs affidavit

Regarding the trial briefs, the Court confirmed that r 14.27(1)(c) prohibits including trial briefs in extracts of key evidence. The Court stated that an appeal is not an opportunity to repeat the trial. Trial briefs are of little assistance in this exercise and their inclusion risks circumventing the factum page limits and the focussed and concise arguments necessitated by those limits. The applicants asked to file the trial briefs submitted at trial respecting the application of the Consumer Protection Act, saying this was necessary to demonstrate the respondent raised a new argument at the trial concerning the applicability of the Consumer Protection Act, which they assert was barred by the doctrine of res judicata. The Court found there was no justification for including the trial briefs. As for the affidavit on costs, because costs were not argued before the trial judge, the affidavit constitutes new evidence. An application to admit new evidence is heard and decided by the panel hearing the appeal, and the applicants must file an application under r 14.45 prior to filing their factum.

Final disposition

The Court confirmed the CMO's decision of December 18, 2025. The applicant's factum shall be no more than 35 pages in length and otherwise formatted in accordance with the Rules. The applications to file trial briefs and the affidavit on costs were dismissed. With respect to the affidavit on costs, the applicants may apply to the appeal panel to submit it as new evidence. The application to extend the deadline for the applicants to file their factum was granted on consent, with the deadline extended to March 4, 2026. No specific monetary award was determined in this procedural decision, as it addressed only the appellate filing requirements rather than the underlying merits of the property damage dispute.