Executive Summary: Key Legal and Evidentiary Issues

• Discretionary standard for granting leave to file a reply factum in civil appeals and the emphasis on maintaining the traditional “one factum per party” structure.
• Tension between decisions favouring broader use of reply factums and cautions against expanding written material that merely repeats or refines earlier arguments.
• Identification of six proposed issues on appeal, including alleged negligence, breach of contract, double withdrawals, conversion, detinue, compensation, limitation periods, and reliance on a sentencing judge’s findings.
• Assessment of whether a proposed reply factum genuinely advances the appellate panel’s understanding of complex factual disputes versus simply re-arguing the case with added detail.
• Determination that only two issues (relating to TD’s negligence/breach of contract and alleged 17 double withdrawals) warrant a limited reply factum, confining the scope of additional written argument.
• Mixed result on the motion, with partial leave granted and no costs ordered, underscoring the exceptional nature of permitting reply factums.

Background and parties

This appellate motion arises in the context of a civil dispute between an individual customer, Stuart Cameron Murray, and The Toronto-Dominion Bank (TD), heard in the Court of Appeal for Ontario. Mr. Murray, acting in person, is the plaintiff and appellant, while TD is the defendant and respondent. The underlying case involves allegations that TD mishandled his banking transactions, including claims of double withdrawals and broader negligence or breach of contract by the bank. The decision at hand does not resolve the merits of the appeal; rather, it addresses a procedural motion brought by Mr. Murray seeking permission to file a reply factum of about 6,000 words in his appeal against TD.

Nature of the motion

The motion before Lauwers J.A. concerns whether Mr. Murray should be granted leave to file a reply factum in a civil appeal. In Ontario civil appeals, there is no automatic right to file a reply factum. The judge reviews the governing principles drawn from prior Court of Appeal decisions. Some authorities, such as Prism Resources Inc. v. Detour Gold Corporation and Boyer v. Callidus Capital Corporation, reflect a generally favourable view of reply factums, while another, Sternberg v. Cresford Capital Corporation, illustrates a case where a reply factum was permitted. At the same time, the court relies heavily on the cautions expressed by Nordheimer J.A. in Goberdhan v. Knights of Columbus, where leave to file a reply factum was refused and the traditional model of one factum per party was strongly endorsed.

Principles on reply factums in civil appeals

The decision canvasses the basic framework for when a reply factum may be allowed. The judge notes that reply factums can sometimes be useful, particularly when a respondent’s factum raises a new issue, including arguments that were made below but not advanced by the appellant on appeal. However, the court is wary of routinely allowing reply factums because doing so risks an endless exchange of written argument, potentially leading to sur-reply factums and undermining the efficiency and clarity of the appellate process. Lauwers J.A. adopts Nordheimer J.A.’s view that the main factums should ordinarily be sufficient to show how the parties “join issue” on the appeal, leaving any residual uncertainty to be clarified through oral argument at the hearing. The judge further expresses concern about an appellant using a reply factum simply to refine or more precisely articulate arguments that could and should have been clearly expressed in the original factum. In the judge’s view, such refinements usually add to the panel’s reading burden without proportionately improving the court’s understanding of the case.

Exceptional nature of permitting reply factums

While confirming that a motion judge has discretion to allow a reply factum, the court stresses that permission should be granted only in exceptional circumstances. The system already functions well with the existing structure of one factum per party, with occasional exceptions when genuinely warranted. The concerns include unnecessary duplication of arguments, strategic case-splitting by counsel or parties, and the proliferation of materials that do not materially assist the court. Thus, the decision rejects the notion of moving toward an automatic practice of allowing reply factums, preferring to confine them to rare situations where they provide a clear, concrete benefit to the appellate panel’s understanding.

Issues proposed in the reply factum

Mr. Murray followed good practice by providing the motion judge with his draft reply factum. In it, he sought to address six distinct issues in the appeal. First, he alleged that the motion judge below erred in law or made a palpable and overriding error of fact by failing to consider TD’s negligence and breach of contract. Second, he contended the motion judge erred by not finding that TD made 17 double withdrawals from his accounts. Third, he argued that the motion judge erred in not finding that TD owed him compensation for its errors. Fourth, he claimed the motion judge misinterpreted the law relating to the torts of conversion and detinue. Fifth, he asserted that the motion judge erred by not dealing with the applicable limitation period. Sixth, he argued that the motion judge erred in the way it accorded weight or deference to a sentencing judge’s findings in related proceedings. Collectively, these issues reflect a factually complex appeal focused on the bank’s alleged errors in handling his funds, possible tortious and contractual liability, and the temporal and evidentiary framework within which these claims must be assessed.

Assessment of the proposed reply factum

The judge characterizes Mr. Murray’s draft reply factum as essentially a re-argument of his case, crafted with greater precision than his original appeal factum. After reviewing it, the court concludes that only some parts of the document would truly assist the appellate panel. Specifically, the material under paragraph 1 of the proposed reply factum and the portions dealing with issues 1 and 2—TD’s alleged negligence and breach of contract, and the alleged 17 double withdrawals—are seen as offering more precise factual detail that could materially advance the panel’s understanding of the evidence and the factual context of the dispute. By contrast, the parts of the reply factum addressing issues 3 through 6 are viewed as adding little that is new; they largely repeat the arguments already made in Mr. Murray’s initial factum, rather than presenting genuinely fresh issues or clarifications that would assist the court.

Outcome of the motion and parties’ relative success

In the result, the court grants Mr. Murray limited leave to serve and file a reply factum, but only in a tightly confined form. He is permitted to file a reply factum strictly limited to paragraph 1 of his proposed reply factum and to issues 1 and 2, exactly as drafted, without any additional text or expansion. This ensures that the appellate panel receives only those supplementary factual details that are likely to be helpful, while preventing the reply from becoming a broad vehicle for repetition or refinement of arguments already before the court. The motion therefore has a mixed outcome. Mr. Murray succeeds in obtaining some ability to reply in writing on key factual and negligence issues, but he does not receive approval for the full 6,000-word reply he proposed. TD, in turn, successfully resists the bulk of the additional written material. Recognizing this mixed success, the court exercises its discretion and orders that there be no costs of the motion. As this decision concerns only procedural relief on a motion about a reply factum, it does not address or fix any monetary award, damages, or costs on the underlying claim; the total amount, if any, ultimately awarded in favour of either party on the merits cannot be determined from this decision alone.