The Basics of Factum Writing

David
Stratas[1]

Factum
drafting is an art, not a science.  A
factum also has to respond to the practical needs of a particular case.  As a result, there can be no particular
formula for writing a good factum.
Different approaches can work.

That
being said, good factums do share common characteristics.  In this note, I try to identify some of
these.

Appended
to this note are some examples taken from real factums.  These are not necessarily
"perfect": in many cases, I would re-edit them.[2]  However, I have included them as they
might illustrate some approaches that you might try.

* * * * *

1.         So-called
"little things"

“Little
things” in factums are in fact big things.  Getting the little detail right increases
your credibility.  Carelessness
hurts your credibility:

(a)       no
typographical errors —
Running the “spell check” program is no substitute for a
careful proofread.  To many trail
council belief its fin, in principal, just to run a spell cheque programme.

(b)       no
grammatical errors.

(c)        consistent
formatting and usages — if you indent your authorities, then always
indent them; if you use italics for
emphasis, then never use underlining; if you use an abbreviation like
“para.” in citations, then always use “para.”, not
“paragraph” or “parag.”; if it’s “Catzman
J.A.” then always use “Catzman J.A.” and not “Mr.
Justice Catzman” or “Justice Catzman”; if you are using the
S.C.R.’s for citations, never use D.L.R.’s for a Supreme Court
case.

(d)       perfect
citations.

(e)       appropriate
citations: use the official reporters (F.C. and S.C.R.), especially in those
courts.

(f)         scrupulously
follow the formatting rules and requirements in applicable rules of court,
practice directions or administrative board rules.  For example, do not assume that the
requirements in the Superior Court of Justice are the requirements in Federal
Court Trial Division or the Ontario Court of Justice or that the requirements
in civil cases are the same as criminal cases.

2.         Write
a reader-friendly, helpful document.

Do
anything possible to make the factum reader-friendly and helpful:

(a)       Use
plenty of spacing to create “white space”.

(b)       Err
on the side of writing short, simple sentences and short, simple
paragraphs.   Each sentence
should pick up on a word or an idea in the previous sentence.

(c)        Use
lists: e.g. “the relief should
be granted because:... (1)...; (2)...; (3)...; etc.

(d)       Use
headings.  Better still, use
headings that exhort and give the reader an idea of what your submission will
be.  (For example, write "There
was no contract because there was no offer and acceptance" rather than
"The contract issue".)

(e)       Order
the headings in a logical and persuasive order.

(f)         Help
the judges:

(i)         Keep
it short.  Judges have too much to
read.  They welcome short factums
that deal concisely with the true issues in the case.

(ii)        Never
use “supra”, “infra”, “above”, or
“below” in citations.
Doing that forces judges to flip elsewhere to find the citation.  This can be frustrating for them,
especially in long factums.  Just
repeat the citation.

(iii)       Give
them the authority and where it is in
your book of authorities or evidentiary record  (e.g.
“Book of Authorities, Tab 1" or “Application Record, Tab
1").

(iv)       Give
them the page number of the authority you are relying upon.  Make sure the relevant part is
highlighted in your book of authorities.

(v)        Use
illustrations (see Appendix 1), diagrams (see Appendix 2) or charts (see
Appendix 3) if that will make the point better — pictures are sometimes
worth a thousand words.

(vi)       The
full text of every legislative provision mentioned in your factum must be in
the back of your factum.  All other
provisions that might be helpful should also be in the back of your factum.   Simply listing the provisions in
the back of your factum, without setting out their text, is not helpful.  Note that the Federal Court Rules
require that the English and French versions of legislative provisions be in
the back.

(vii)      Consider
using an index, particularly in longer factums.

(viii)     Where
jurisdiction to grant the relief sought is uncertain or the judge may not have
encountered this sort of motion before, state what the jurisdiction is to grant
the relief sought.

(ix)       Say
exactly what you want in the
“Relief Sought” section of the factum.  You should be able to cut the wording
from this part of your factum and paste it, without any changes, into the body
of the order or judgment to be issued by the Court.

3.         Be
persuasive

The
techniques one uses to persuade will vary from case to case.  Different cases call for different
approaches.  Try some of the
following:

(a)       Do
everything above.

(b)       Be
persuasive on three levels:

(i)         convince
judges that if they decide in your client’s favour they will be legally
correct;

(ii)        convince
them that if they decide in your client’s favour they will have done the
just thing; and

(iii)       convince
them that the factum and its author are credible.

Concerning
(i) and (ii), you want to appeal to the head and the heart.  You want to capture the legal high
ground and the moral high ground.
It may not be possible to capture the moral high ground in a case: your
objective may have to be less ambitious.
Your only option may be to keep your client out of the moral
gutter.

Concerning
(iii), you want the judges to believe that you have thought through the problem
properly and are dealing with all of the real factual and legal issues in a
direct, non-evasive, clinical way.
In short, you want you and your factum to be believed.

(c)        Use
“point first writing” — in each section of your factum, say
what your submission is and then build toward it, rather than building toward
it and revealing the point at the end, like a mystery novel.

(d)       Use
persuasive headings — rather than “The Test for an Interlocutory
Injunction”, try “The Interlocutory Injunction Test is Met in This
Case”.

(e)       Avoid
words like “clearly”, “absolutely”, “it is
obvious that”, “egregiously”, etc.  They do not
persuade.  They jar and repel the
reader.

(f)         There
is no need for formalism — e.g.
“this Honourable Court”, “it is submitted that”,
“it is respectfully submitted that...”.  You might consider using the latter
sparingly, simply to flag a central submission.

(g)       Sometimes
understatement of a point after a well-structured discussion of the law or
facts is devastatingly persuasive.
Similarly, sometimes leaving it to a judge to make connections is better
than making them for him/her.

(h)        At
key points of the factum, try to choose a “sound bite” or nice turn
of phrase that will encapsulate your argument.

(i)         Adopt
a clear, confident, direct tone in your writing.  Some suggestions:

●          Unless
there is a good reason to do otherwise, make the subjects of your verbs the
agents of those actions (avoid "passive voice").  Compare “The Plaintiff said that
the union gave the Defendant the property,” with “It was said by
the Plaintiff that the Defendant was given the property by the
union.”  The passive voice is
longer, evasive (it hides the subject of the sentence) and less crisp and
confident.  Most factum-writers use
tens of passives in their factums, which destroys their persuasiveness.

●          As
much as possible, keep subjects and verbs together.  Compare "The Toronto Blue Jays will
be lousy this year because they have some of the worst starting pitching in the
American League" with "The Toronto Blue Jays this year, because they
have some of the worst starting pitching in the American League, will be lousy.

●          Use
specific verbs, adverbs and adjectives (avoid "nominalizations").
Compare “The Yankees decided to spend more than any other team on
players' salaries” with “The Yankees made a decision to spend more
than any other team on players' salaries”.

●          People
seldom “indicate” things — if they stated something, then say
they stated something.

●          Get
rid of “waffle words”, "throat clearing phrases" and
other useless words from your writing: e.g.
“it appears that...”, "it is the fact that...", "it
is apparent that...", "generally it is the case that...".  If it “appears”, is
"apparent", etc. then just say it without the useless verbiage.  If you cannot simply say it, than
analyze why.  Is there a
qualification that you should be expressing?  Or are you being uncertain in your
language because you have not nailed down the facts or law to a sufficient
level of certainty?  If so, do more
work.

●          Avoid
legalisms and unnecessary phrases — compare “The plaintiff spoke
about the proposed strike before the vote” with “The plaintiff
spoke with respect to the proposed strike prior to the vote”.

●          For
greater coherency every sentence should build on a word in the preceding
sentence.  Build from old
information to new.  Repetition of
words is O.K.  Compare "The
plaintiff served the defendant with the statement of claim.  Several incidents concerning... were
alleged in the pleading." with "The plaintiff served the defendant
with the statement of claim.  The
statement of claim alleged several incidents...."

●          Use
transitional or orienting words at the beginning of sentences to signal to your
reader where you are going.
(Transitional words: "for example", "therefore",
"however", "on the other hand", "further",
"moreover", "thus", "consequently",
"accordingly".  Orienting
words: "for the most part", "as a general rule",
"historically".)

●          Most
of all, just get to the point.
Avoid excessive verbiage.
Short and direct approaches persuade.  Structure your argument as if you are
driving on a freeway, trying to get from “A to B” directly, simply
and promptly.  Don’t take your
reader on off-ramps or onto the “shoulders” or fringes of an
argument.  Just because your
research may have led you on curves and into dead-ends does not mean that you
have to take your reader through them.

4.         Write
introductions or overviews

An
introduction or overview at the start of your factum is essential.  It orients the reader and begins the
task of persuading the reader on all three levels.  Although various rules of procedure do
not require you to write an introduction or overview, you should do it
anyway.  Some ideas for you to
consider:

(a)       At
the beginning of your factum, in a succinct manner (e.g., 2-5 paragraphs), write what the case is about and why you
should win.

(b)       You
should accomplish three things in a good introduction:

●          start
to convince the judge that if he/she decides in your favour, the judge will be
legally correct;

●          start
to convince the judge that if he/she decides in your favour, the judge will
have done the right thing; and

●          provide
the judge with a “roadmap”, telling him/her what your factum is
going to deal with.

(c)        consider
writing overviews or introductions elsewhere in your factum, e.g. at the beginning of the discussion
of the law, to orient the judge and give him/her some idea where you are going.

(d)       Do
everything set out in sections 1, 2 or 3, above.  Writing style and word choice is
particularly important in an introduction.
Sample introductions are provided in Appendix 4.

5.         Write
a great facts section

The
facts section is easily the toughest part of the factum to write.  It is also the most important because
most cases are won on the facts.
Some suggestions for you to consider:

(a)       Assiduously
develop the facts before the motion — write correspondence to set up the
case; get all the information and documents from your client by conducting
great interviews; use other means to get information (third parties, access to
information legislation, records from other proceedings); write great
affidavits; conduct great cross-examinations; etc.

(b)       Never simply splice your client’s
affidavit into the facts section, making only a couple of minor changes —
this is a wasted opportunity.

(c)        Use
complete and accurate evidentiary references; cross-reference to the books that
the judge is using, e.g. the motion
record, application record, etc.

(d)       Consider
using great “quotable quotes” with the evidence references to
capture the colour, but don’t overuse them.

(e)       Select and organize the facts: choose a theme and develop it like you would if
you were writing a novel or telling a story.  You are trying to convince the judge
that:

●          the
necessary factual elements for the relief sought are or are not there;

●          ruling
in your client’s favour is the just thing to do.

Therefore select and organize the facts in a manner that
will best bring those points out.
What facts are most persuasive and how are they most persuasively
arranged?  The answer to this can be
the most time-consuming part of factum-writing.

On the issue of selecting the facts for the facts sections,
factums are not pleadings.  You are
not obligated to set out every last fact that might conceivably be
relevant.  Instead, reproduce only
those that further your argument or rebut the arguments against you (subject to
(f)-(h) below).

On the issue of organizing the facts, organizing them in
chronological order is sometimes, but not always, the most persuasive way of
organizing them.  Think creatively:
are there other ways of organizing the facts that will make you look legally
right and make your client’s position look morally right?

(f)         Remember
that “the facts” can sometimes constitute more than what appears in
the evidentiary record.
Significant evidentiary gaps in the other side’s case, factual
concessions you have made can also be properly considered “facts”.

(g)       Be
scrupulously honest with the facts.
Never misstate or exaggerate the facts.

(h)        In
particular, do not evade or misstate relevance facts against your
position.  Instead, introduce them
and deal with them at some point in the most favourable manner possible (e.g. by minimizing their relevance,
putting the best light possible on them by explaining them, juxtaposing them
with facts that are better for your client, juxtaposing them with facts that
are bad for the other side).

(i)         Sometimes
a bit of law in the facts section (or in the introduction before the facts
section) helps the judge place things in their proper context.  For example, if your case involves a
judicial review regarding whether a decision was within a particular statute,
reproduce the section after you identify the section and flag what the
jurisdictional problem is.

(j)         Do
everything set out above in sections 1, 2, 3 and 4 (e.g. make use of headings, a good opening, introductory sentence
after each heading, “point first writing”, good writing style, etc.).

6.         Write
a great argument or “law” section

Some
ideas:

(a)       At
all times, comprehensive and flawless legal research is necessary.

(b)       You
are not writing an academic paper.
State why you should win in a practical way.   If the legal test is clear, just
state it in a paragraph.   If
there are conflicting lines of authority, identify them quickly and then make your
reasons about why one line is better than another line in a succinct, clear way
(perhaps simply listing the reasons as a series of bullets in a paragraph).

(c)        Select and organize your arguments.
Making eight arguments, only three of which have any force, detracts
from your credibility.  Make only
the best arguments.

In organizing arguments, try to begin and end with the
stronger arguments.  For example, if
your arguments are ranked 1, 2, 3, 4 in strength, consider ordering them 1, 3,
4, 2.  I often like to end a factum
with a broad, compelling, positive reason why the relief should/should not be
granted.  However, sometimes
arguments build on prior arguments and you will want to organize them in that
manner.

If you are dealing with opposing arguments (whether you are
a responding party or not), do so but only after you have set out your own
version of the events, placing your “spin” on them.  If you are a respondent, do not adopt or
“buy into” the applicant’s/appellant’s structure,
characterizations, etc.  You must affirmatively set out your story, using your structure,
adopting your own characterizations.

In dealing with the opposing side’s factum, make it
clear what you are responding to.
Rather than writing, “With respect to paragraph 52 of the
applicant’s factum, the respondent states that...”, write “In
paragraph 52, the applicant incorrectly states that the Smith case is the governing authority.”  The former may cause the judge to go
back to the Applicant’s factum — you want him/her to stay in your
factum all of the time.

Finally, in dealing with the other side’s arguments,
just deal with the big stuff.  You
do not have to reply to every last little misstatement or
mischaracterization.

(d)       Don’t
cite four authorities where one will do; you want to convey the impression that
the proposition you are supporting is a “slam dunk” in your favour,
not something you have to agonize over.
Put the other three in your briefcase in case you need them at court.

(e)       You
do not need authorities for everything.
Some points are so obvious, you run the risk of insulting the judge if
you cite any authority or too much authority.  Give the judge, particularly appellate
judges, some credit for knowing the law.

(f)         Choose
authorities wisely.  Often the best
authority is a lower court case that is close on your facts, rather than a
Supreme Court case.

(g)       Consider
using great “quotable quotes” from the case law, but use them only
if they are short.  Also, you do not
need to identify in your citation who the judge was who wrote a decision.  However, if it is a particularly good
judge who has credibility in the area, mention the name.

(h)        Hone
in and allocate your scarce space on the issues that matter, never evade
them.  Don’t waste time on the
issues that do not matter.

(i)         Do
not repeat things you’ve said before.  Simply cross-reference other parts of
your factum, reminding the judge what was said before.  For example, “As mentioned in
paragraphs 52-54 above, the applicant has delayed in bringing this
application.”

(j)         Be
scrupulously honest in the use of authorities.  Never misstate authorities, exaggerate
what they say or ignore relevant and material authorities against your
position.

(k)        The
“law” section of a factum is always an “argument”
section.  You should always apply
the law to the facts.  Do not worry
about putting facts in this part of the factum or even introducing facts you
have not already set out.  Facts
should be deployed where they are most persuasive.

(l)         You
have more to work with than just the facts and the law.  Think of using analogies to make your
point.  As well, sometimes you can
construct “strawmen” representing your client’s case, and
then rip it apart.  All things being
equal, analogies and the use of “strawmen” are most persuasive when
deployed in oral argument.  In
jurisprudential cases (i.e. cases
where the judge has to choose between conflicting lines of jurisprudence), what
implications are associated with your argument?  The other side’s argument?  Be careful not to overargue, i.e., advance propositions that create
dangerous implications that the judge will not want to accept.

(m)      Do
everything set out in sections 1, 2 and 3, above (e.g. make use of headings, a good opening, introductory sentence
after each heading, “point first writing”, good writing style, etc.).

7.         Strategic
considerations

There
are often other things that you should consider:

(a)       What
sort of proceeding are you in?  For
example, if you are seeking leave, you want to make the issues sound
interesting, with wide significance.
If you are resisting leave, you want to make the issues sound boring,
with significance only to the particular parties.

(b)       What
are the limits on the jurisdiction of the court?  In an appeal or a judicial review, what
is the standard of review?  Do not
raise issues and arguments that the appeal or reviewing court cannot
adopt.  For example, appeal courts
have only very limited jurisdiction to overturn findings of fact or adjust
damages awards.  (See Housen v. Nikolaisen, 2002 SCC 33 [March
28, 2002] and also R. v. Biniaris,
[2000] 1 S.C.R. 381 in criminal cases).

(c)        Is
the appeal an “error correcting appeal” or a “jurisprudential
appeal”?  The former is likely
to be dealt with by brief endorsement and your factum should be written knowing
that the court will likely deal with the issue in that way (i.e., usually shorter).  The latter requires more extensive
discussion of authorities (i.e.,
usually longer).

(d)       In
an application for leave to appeal, what is the test for leave?  It is a different test in different
Courts at different stages.

(e)       Are
there factual, legal or procedural concessions you can make in your factum that
will advance your argument and make your client look reasonable?

(f)         Will
there be oral submissions?  if not,
you might want your factum to be more detailed.

(g)       How
will the case be argued orally?
Your factum should facilitate the oral argument.

8.         Practical
tips

Different
people write factums in different ways.
Here is what I do:

(a)       Start
writing the factum as soon as possible.

(b)       Before
you write, indeed before you assemble the facts, determine what you have to
establish and how you are going to get there and, at a minimum do preliminary
legal research to understand what will be the key issues upon which your
particular matter will turn.  If
necessary, close your door and spend plenty of time thinking about this.

Your approach as a practical factum-writer comprises two
seemingly contradictory tasks.  You
must master the detail but at the
same time to rise above it, to paint an accurate general picture for the judge
and not to lose the judge in the detail.
Many lawyers never master much of the detail and, in their factums,
seldom are able to rise above what little detail they have mastered.  They are not aware of the trees and
aren’t trying to describe the forest.

(c)        Be
cognizant of “colour”.
It wins cases.  Always
consider how you can affect “colour” through letter-writing,
calling certain types of evidence, etc..

(d)       Finish
the factum early — come back to it later with a fresh set of eyes.

(e)       Edit,
edit and edit.  Then edit some
more.  And again for good
measure.  Your objective should be
to persuade and to shorten (both are often the same thing).

(f)         Use
another colleague who knows nothing about the case to proofread and comment on
it before it is filed.

(g)       Follow
the Rules closely.  Some court desks
will reject non-conforming or late material.

Appendix 1
— Illustrations

Rather
than pages and pages of description, sometimes a picture makes the point
better.  On the next page is an
example of an illustration that was used in a factum.  It addressed a key issue in the case:
who was responsible for the delay.

This
illustration appeared in a factum, with a few pages following it explaining why
each of the 25 separate periods (numbered along the top of the illustration)
were assigned to a particular party.

The
illustration makes the point far better than just using words.

Responsibility
for Delay

There are 25
identifiable periods of delay since the Crown became involved.  Who is responsible?

The rationale
for the assignment of the periods of delay to parties appears on the following
three pages.

Appendix 2
— Diagrams

Compare this excerpt from a factum (labelled “bad
version”), with the reworked excerpt (labelled “better version”).
Sometimes a picture is worth a thousand words!

* * * * *

The
Corporate Structure (BAD VERSION)

12.       Before  November 21, 1994, 134982 Canada Inc.
was owned 51.0% by Property Investments PLC and 49.0% by 158892 Canada Inc.

13.       At all material times, 32.5% of
the shares of 158892 Canada Inc. have been owned by 143729 Ontario Ltd., which
in turn has been 51.0% owned by Land Developments Inc.  At all material times Land Developments
Inc. has owned 17.6% of 158892 Canada Inc.

14.       On November 21, 1994, Property
Investments PLC sold 1.1% of its shares to Land Developments Inc.

15.       Therefore, at the present time,
134982 Canada Inc. is effectively controlled by Land Developments Inc.

The
Corporate Structure (BETTER VERSION)

12.                   The
following diagram illustrates the corporate structure.  Land Developments Inc. effectively
controls 134982 Canada Inc.:

* * * * *

Diagrams can also be used to show that your case is exactly
like or very similar to an earlier case on point.  Here is a diagram that was used in a
factum to show that the facts of the case at bar were very similar to those of
an earlier arbitration:

Appendix 3
— Charts

This chart appeared in a real factum.  Its purpose was to demonstrate that “our
case” was on “all fours” with Hunter v. Southam Inc. and so the investigators should have gotten
a search warrant.  (Note that the
law has changed since this table was drafted: see, e.g. R. v. Jarvis, [2002]
3 S.C.R. 757)

Charts, properly deployed in a factum, can be persuasive.  They often end up being a focus for
debate in the courtroom. That can be a good thing or a bad thing, depending on
how you have designed the chart and have selected the detail for it.  Take care to ensure that the chart is
not misleading or inaccurate.

* * * *

Hunter v.
Southam

Our case

Agency

Director of
Investigation and Research.

Ontario
Ministry of the Environment, Investigations and Enforcement Branch (IEB).

Governing
Statute

Combines Investigation Act.

Ontario Water Resources Act.

Nature of
Statute

Has been
called “regulatory” in character: Thomson Newspapers v. Canada, [1990] 1 S.C.R. 425.

Has been
called “regulatory” in character: R. V. City of Sault Ste. Marie, [1978] 2 S.C.R.  1299.

Investigatory
Provision That Was in Question

Section 10, CIA.

Section 15, OWRA.

Person Who
Authorizes the Investigatory Tool

The
Restrictive Trade Practices Commission, which exercises investigatory
functions.  Not a judge.

Individual
officer - self authorized.  No
scrutiny.

Purpose of
Using the Investigatory Tool in the Case

Investigation
into conspiracy offence under CIA.

Investigation
into discharge of polluting material under OWRA.

Where and
When Can Tool Be Used?

Must get a
certificate from Commission when use of power contemplated.  No requirement of reasonable and
probable grounds in s. 10.  Can be
used anywhere.

On the
Ministry’s interpretation - at any time even without reasonable and
probable grounds.  Can be used
anywhere.

Scope of
Investigatory Tool

Documents
named in warrant and found at place of search.

Broader: any
documents that can be located by individual or company; also requires person
to appear and give testimony against his/her will under threat of obstruction
charge.

Type of
Documents Sought

Documents
belonging to Southam Inc. found in business premises relevant to competition
offence of conspiracy occurring at a specific narrow time (i.e., probably commercial documents)

Any
documents held by the company or individual that serve to advance the
prosecution of the case; also any documents relating to possible defences
held by the company or an individual.

Offence
Under Investigation

Conspiracy
under CIA.  Can also be prosecuted as conspiracy
under Criminal Code. Jail terms are
possible.

Offences
under ss. 30(1), 30(2) OWRA; jail terms are within the range of sanctions.

Result in Case

Evidence
gathering without warrant invalid.

Same result
must follow.

Appendix 4
— Some Sample Introductions

A.      Appeal to the
Federal Court of Appeal from a judgment on a motion[3]

(1)       This
proceeding

1.         In this proceeding,
<client> seeks a declaration that an Inquiry established under
<section and name of statute> contravenes ss. 7 and 8 of the Charter of
Rights and is invalid.   The
Federal Court Trial Division has stayed the Inquiry until it determines the
issues in this proceeding.

(2)       The problem
giving rise to this appeal

2.         On <date>,
<client> moved to amend his Statement of Claim and consolidate his
proceeding with that of <other person>.  The Federal Court Trial Division granted
the motion — but only on condition that the stay of the Inquiry be
lifted.  In this appeal,
<client> requests that this condition be struck.

(3)       The effect
of the impugned condition

3.         The lifting of the
stay, permitted by the condition, means that the Inquiry will start.  However, the Inquiry may be invalid and
so it should never start.

4.         The Inquiry has been
stayed, in part, because of the irreparable harm that would be caused to
<client> if it starts.  The
condition, by starting the Inquiry, allows that irreparable harm to happen.  This will happen through no fault of
<client>.

(4)       The appeal
should be allowed

5.         As will be developed
in further detail below, <client> has prosecuted his Charter challenge
with due dispatch.  The Trial
Division has acknowledged the “good faith” of <client> in
prosecuting the challenge.  The
challenge is to be heard <a date later in the year>, which is the
earliest time the Trial Division could make available to the parties.  The challenge is of some force —
this Court has already suggested that <section authorizing the Inquiry>
“cries out” for Charter-based attack.

<Trial
Division judgment acknowledging client’s good faith>

<Earlier
appeal in which the Court said the section “cries out” for
attack>

6.         As will be developed
in further detail below, <client> submits that the Trial Division erred
in the following respects:

(a)       The Trial Division did not have
jurisdiction under the Federal Court Act
or the Federal Court Rules to impose
the impugned condition.

(b)       The Trial Division lifted the
stay of the Inquiry without any motion before it asking for that relief.  As a result, <client> was never
given an opportunity to file evidence or to prepare proper submissions on the
issue.

(c)        There was no evidence
showing a change of circumstances justifying the lifting of the stay.

(d)       The Trial Division lifted the
stay because two proceedings challenging the Inquiry were initially brought and
the Respondents have suffered an “injustice” by having them now
consolidated.  <Client>
initially brought two proceedings because it had to do so by virtue of
requirements in the Federal Court Act and
the Federal Court Rules.  Consolidation causes no
“injustice” to the Respondents and there was no evidence of
“injustice” in any event.

(e)       The impugned condition allows
the Inquiry to proceed even though there have been many earlier decisions in
this case, based on evidence, that the Inquiry should be stayed.  Those decisions uniformly found that
there was a serious issue to be tried in these proceedings, <client>
would suffer irreparable harm if the Inquiry proceeded before the determination
of these proceedings and the balance of convenience was in his favour.

(f)         All of the
considerations underlying the initial imposition of the stay of the Inquiry
remain present.  A stay of the
Inquiry is still warranted.

B.      Simple
introduction[4]

1.         The Appellant was
charged with the offence of discharging or causing or permitting the discharge
into the natural environment of a contaminant that caused or was likely to
cause an adverse effect.

Environmental Protection Act, R.S.O. 1980,
c. 141, as amended, s. 13(1).

2.         Irwin J.P. found the
Appellant guilty of the charge and imposed a fine of $5,000.  The appeal should be allowed:

●         there
was no evidence before Irwin J.P. to support a finding beyond a reasonable
doubt that the Appellant discharged the substance which resulted in the adverse
effect or that the Appellant’s operations caused the adverse effect; and

●         Irwin
J.P. misapprehended or improperly applied the legal principles applicable to
the defence of due diligence.

C.      Judicial Review
Factum[5]

1.         The Applicants
submit this memorandum in support of two applications for judicial review:

●         Court
File No. 2683-95, which is an application for judicial review concerning an
Interim Order (the “Interim Order”), purportedly made under s. 35
of the Canadian Environmental Protection
Act (“CEPA”), prohibiting the export of PCB Waste issued by the
Respondent Minister of the Environment on <date>;

●         Court
File No. 2681-95, which is an application for judicial review concerning the
decision of the Governor-in-Council on <date> to approve the Interim
Order (the “Approval”).

The facts and law relevant to the
two applications are identical and the two applications stand or fall together.

2.         The Minister made
the Interim Order without jurisdiction and for an improper purpose.  The Order is void.  In particular:

(a)       s. 35 of CEPA requires that
Ministerial-level consultation take place before the order is made.  There was no such consultation in this
case.

(b)       s. 35 of CEPA provides that an
Interim Order can only be made if there is a significant and imminent danger to
human life or health.  There was no
such danger in this case.  Indeed,
the expert staff of the Respondent Minister of the Environment advised her that
there was no such danger but she issued the Interim Order anyway.

(c)        there was no other source
of jurisdiction for the making of the order.

(d)       the Minister took into account
irrelevant considerations and acted for an improper purpose.  Rather than making the Interim Order for
health or environmental purposes, the Minister made it in order to bestow an
economic advantage on certain facilities in Canada owned by <companies>
and to stop competition from facilities in the United States.

D.      Written
submissions at the end of trial.[6]

(a)
The charge

1.         <Client> has
been charged with the offence of violating a control order contrary to s.
146(1a) of the Environmental Protection
Act, R.S.O. 1980, c. 141, as amended.
The Crown alleges that <client> did not comply with a control
order, dated May 4, 1983.  The
control order requires that <client> take such steps as are necessary to
ensure that the emission of sulphur dioxide into the natural environment does
not result in an hourly average ground level concentration in excess of 0.50
ppm.

(b)       <Client’s>
defence

2.         <Client>
defends this charge on the following bases:

●          <Client> could
not have foreseen or prevented the incident on October 23, 1990.

●         <Client>
took “such steps as are necessary” to ensure that its emissions did
not cause hourly ground level concentrations of sulphur dioxide to exceed 0.50
ppm (an “exceedance”).
Accordingly, the Crown has failed to prove the charge beyond a
reasonable doubt.

<Client>
exercised due diligence throughout.

(c)       Previous
judicial findings that are persuasive

3.         Mr. <B.>
testified that <client’s> pollution control system and the
personnel operating the system on <date of the offence> were the same as
on <earlier date>.  An
incident on <that earlier date> was commented upon by His Honour Judge
<Name>in a previous trial and some of his findings concerning <client’s>
system and its personnel are persuasive in this case:

“The
company had “up-to-the-minute”, for lack of a better description,
information concerning atmospheric conditions that might have affected ground
level concentrations.

“The
system employed by <client> was one that was in place, with the approval
of the M.O.E., and, on he evidence is apparently as good a system as is
available.

“The
personnel who operated the system [<names of personnel, same as in this
case>] were experienced, knowledgeable and competent, and, I find, properly
employed these attribuutes in the operation of the system.

“Given
all of the circumstances to which I have referred, I cannot see how the company
could reasonably have been expected to prevent this occurrence.”

(d)       The
inherent error and uncertainty associated with the sciences of meteorology and
dispersion modelling mean that “there are bound to be a certain number of
exceedances”

4.         Forecasting the
weather, determining what effect future weather might have on emissions
discharged hours earlier and judging what level of smelter production is
permissible in light of numerous and complex factors are difficult tasks which
are based on imprecise sciences.
This must be borne in mind when assessing whether <client>
operated its pollution control system effectively on <date>.  To review the judgments made by the
operator of the system in the “heat of the moment” with the benefit
of hindsight and to hold him accountable for events that could not reasonably
be anticipated is to apply a standard of perfection that the sciences of meteorology
and dispersion modelling themselves cannot meet.

5.         Indeed, even if the
science of meteorology were exact enough to expect 100% accurate weather
predictions, the Ministry of the Environment (“MOE”) concedes that
uncertainties associated with dispersion modelling will mean that “there
are bound to be a certain number of exceedances”.

Exhibit 23,
Ministry of the Environment, Short Range
Short-Term Fumigation Model for the <client’s smokestack>
(November, 1980), p. 18; Book of Supporting Documentation, Tab 3:

“The
success of this type of emission control depends upon (a) the ability to
forecast meteorological variables and (b) the validity of the model used to
predict the concentration.  We will
confine our discussion to point (b).

.....

“What we
want to emphasize is that even if we could forecast meteorological variables
accurately, we cannot have a perfect emission reduction program.  There
are bound to be a certain number of exceedances of the air quality standard.”
[our emphasis]

(e)       The events
of <date> were rare and complex and could not have been predicted in
advance

6.         From a
meteorological standpoint, <date> was a “very complicated
situation” that is difficult, even with the benefit of hindsight, to
explain.  (Only a brief explanation
is contained in these opening paragraphs.
The full explanation is set out in paragraphs 66 to 78 below.)  There was a complete and unexpected
opening in the clouds that occurred only in the area around
<client>.  As well, the wind
conditions were also unusual, with two different types of
“blowback” occurring.
The evidence suggests that this was the first time during the met room
operator’s nineteen years operating the system that such an extensive
blowback occurred.  The
uncontradicted expert evidence was that the operator of the system could not
have predicted the break-up of the cloud cover, the “recirculating,
stagnating wind” or the “full pattern of recirculation of the winds
that actually happened on that day”.

Evidence of
<Defence Expert>, pp.482, 483, 505, 556: “very complicated
situation”, “complex day”, “complexity of the
situation”, impossible to predict weather conditions on the day,
“very complex shifting wind situation”

Evidence of
<operator of client’s system>:

•           p.338:
unanticipated break in the clouds only over <client>.

•           p.339:
“very hard to predict”, “...we basically cannot predict this
type of blowback situation”

•           p.406:  “They’re [blowbacks]
very  difficult  to
predict  and  they  happen  very infrequently.  The chances of coming  back  over  the
same  area are quite slim,
but they can happen, yes.”

•           p.470:
“I could not predict the cloud opening up at, at nine o’clock on
for a period of time.  And the winds
were so light and variable I could not predict that this blowback gas would
come back into the area.”

•           p.479:
“I’ve never had a day like this.  This is the first day I’ve had
such an extensive  blowback in my
whole 19 years”

7.         Despite the fact
that the meteorological conditions on <date> were unusual, the operator
of <client’s> pollution control system, <name>, made
defensible predictions and reasonable recommendations regarding the proper
level of smelter production.  (See
paras. 48 to 65 below.)

8.         The conduct of
<name of operator> did not cause any exceedance.  The expert evidence establishes that the
high monitor readings were primarily caused by emissions that were produced
during the very early hours of <date>.  Had these emissions remained outside the
area, as was expected, the high monitor readings would not have occurred.  As well, had it remained cloudy (as was
expected and as it did at the airport and all neighbouring meteorological
stations) the high monitor readings would not have occurred.  Instead, an unexpected double blowback and
the unexpected opening in the sky brought the early emissions back into the
area and to ground and recirculated them throughout the area.  These events could not have been
foreseen.   All reasonable
steps based on available information were taken and due diligence was
exercised.

Evidence of
<operator>, pp. 342-343 (no steps that he could have taken to prevent or
minimize the high ground level concentrations on <date>)

Evidence
of <operator>:

•           p.
342: “The, all the weather indications, my observations, the weather
forecasts, the actual weather hourly sequences and weather maps all indicated
that at five o’clock  in the
morning I would have cloudy conditions through the day.”

Evidence
of <defence expert>:

•          p.507:
“On the basis of this analysis, short of cutback at five a.m. in the
morning, he [<name of operator>] could not have prevented it [the high
monitor readings]”

•           p.505:
“at the time of the five a.m. forecast, no, there was no indication
either of [cloud]  breakup or, or of
the recirculating, stagnating wind [the double blowback].... I don’t see
a forecaster being able to predict the, the full pattern of recirculation of
the winds that actually happened on that day.”

•           p.560:
“He was not aware and he, I don’t believe, could have been aware of
the recirculating pattern in the mixed layer, so he couldn’t have known
that the gas would actually circle around and stay around in the airshed for
that long.”

(f)        The
Evidence Adduced By the Parties

9.         The Crown produced
only two witnesses, <Mr. T.> on the issue of the MOE monitor results and
<Dr. B.> as an expert witness on the issue of plume dispersion
modelling.  The Crown had the
opportunity to adduce eyewitness evidence (e.g. from <Mr. T.> who was
there on the day, from MOE abatement personnel in <city> or from
residents of <city>) on critical issues such as plume shape and plume
direction, but chose not to do so.
The observations of <client’s> personnel are the only
eyewitness evidence before the Court.
Further, only the defence’s expert, <Dr. W.> provided an
explanation regarding when the emissions that caused the high monitor readings
were emitted and in what proportion they contributed to the high monitor
readings.  The Crown’s expert,
<Dr. B.>, stated that this would be very difficult and chose not to do
it.  The Crown offered no evidence
in reply to <Dr. W.>.  Thus,
eyewitness evidence of <client’s> personnel and
<client’s> expert evidence on critical issues in this case stand
alone and unrebutted.

Evidence of
<Dr. B.>, p. 186

E.
Other
Introductions

(a)       Sample
moving party’s introduction: major motion, application or end of trial
submission

1.
The
Defendant, the Manufacturers Life Insurance Company (“Manulife”),
is a corporation with $123.5 billion of assets under management as of December
31, 2000.  It is owned by its shareholders.  But that is only a recent
development.

2.
From
1958 to 1999, Manulife was a successful mutual insurance company.  It was not owned by shareholders.  It was owned by participating
policyholders.  Under Canadian law,
these policyholders had certain rights as owners.  They had a right to elect directors and
vote on major matters affecting the company.  They had a right to a say in the affairs
in their company.  They had a right
to any surplus held by the company upon wind-up or dissolution.  They were not shareholders, but for all
intents and purposes they were.

3.
In
the 1990’s, the financial world was changing.  Competition intensified.  Traditional boundaries between insurance
companies and other financial entities like banks and trust companies were
under attack, as each sector wanted to engage in acquisitions and pursue
financial businesses other than their traditional businesses.  To achieve these objectives, easy access
to capital was required.

4.
Mutual
insurance companies were poorly positioned in this changing world.  Mutual companies did not have common
shares.  Access to capital for them
was harder than it was for public stock companies.  So mutual insurance companies began to
lobby and discuss with government the power to “demutualize” or convert
themselves into stock companies.
Many of these discussions concerned fairness to policyholders who were
going to be replaced as owners by stockholders.  Manulife was aware of these discussions
and in fact took part in many of them.
In 1991, the government allowed demutualization for small mutual
companies.  In June 1996, the
government formally announced in a White Paper a policy of demutualization for
all other mutual companies.
Legislation was expected after a period of consultation.

5.
Meanwhile,
Manulife decided to get rid of some of its smaller businesses in order to
devote its energies elsewhere throughout the world.  By 1996, Manulife had transferred away
all of its Caribbean businesses, except for its Barbados business.  In May 1996, Manulife took steps to
finish this job.  It entered into an
agreement with a Barbadian company, Life of Barbados, to transfer all of the
policies of insurance to it.  Life
of Barbados
was not a mutual company.  The
consent of the Barbados
policyholders whose policies were transferred was neither sought nor
given.  The agreement closed on
December 31, 1996.

6.
Manulife
now says that its unilateral transfer of the Barbados policies to a third party
had the legal effect of extinguishing the policyholders’ ownership rights
in Manulife, leaving the policyholders without any legal entitlement to
compensation.  In saying this,
Manulife is asserting that a mutual insurance company like itself could
extinguish the ownership rights of any of its policyholders, without their consent
or even over their objection, by unilaterally transferring their insurance
policies to third parties.  In
saying this, Manulife is asserting that it had the capacity to act unilaterally
to get rid of any of its owners at any time without their consent – even
though those owners are not in default in any way.  In this era of concern about corporate
practices, Manulife’s position is dubious.

7.
Manulife
could have transferred the Barbados
policies to Life of Barbados and could have preserved the Barbados policyholders’
ownership rights in Manulife without any additional cost or material risk to
it.  Manulife knew how to do this
and had done it before: it had transferred its U.S.
and Hong Kong businesses by structuring the transactions in such a way as to preserve
the rights of its U.S. and Hong Kong policyholders.  Those transactions were approved by the
board of directors of Manulife.  But
the Barbados
transaction was different.  The
agreement transferring the Barbados
policies (and, according to Manulife, extinguishing the Barbados
policyholders’ ownership rights) was not placed before the board of
directors for its consideration.
The board never had the opportunity to ensure that its Barbados owners were given the same standards of
protection that its U.S. and
Hong Kong owners received.  The reason: the corporate secretary
regarded the Barbados
transaction as a “de minimis transaction.”

8.
The
8,048 Barbados
policyholders, whose ownership rights were purportedly extinguished by the Barbados
transaction, and specifically the agreement transferring the policies, were not
parties to the agreement.  The
agreement did not tell them that their ownership rights were going to be
extinguished, nor did it tell them that that would happen without
compensation.  The 8,048 Barbados
policyholders did not consent to any of this, nor were they ever given an
opportunity to do so.

9.
The
Barbados transaction was
contingent on “public interest” regulatory approvals in Barbados and in Canada.  In Barbados, the notices of the approval
application, the notices of the hearing and the publicly filed “Nature of
the Agreement” did not alert the policyholders to the fact that Manulife
intended their rights to be extinguished.
The approval process required that there be an independent actuarial
opinion.  But the most important
portion of one independent actuary’s report dealing with the value of
ownership rights was written by Manulife, not the actuary.  Another independent actuary was retained
by the Barbados
regulator (the Supervisor of Insurance) but that actuary was lobbied by
Manulife to change its report and this was done without notice to any of the
policyholders, including those who had filed their objections to the
transaction.  That actuary’s
report was never disclosed to the policyholders and objectors.

10.
The
Barbados Supervisor of Insurance met privately with Manulife before the public
approval hearing, disclosed to Manulife his views in advance of the hearing and
received submissions from Manulife.
The Supervisor also met privately with Manulife after the public hearing
and received submissions.  The real
business did not take place at the public hearing.  It took place behind a closed door
– with the Barbados
policyholders outside the door.

11.
At
the public hearing in Barbados,
Manulife’s representative did not disclose information that would have
significantly increased the value of the policyholders’ ownership
interests in the eyes of the Supervisor.
Manulife’s representative did not disclose how Manulife protected
its U.S. and Hong Kong policyholders when those businesses were
transferred.  He did not disclose
Manulife’s work on demutualization, the progress of the government toward
demutualization, the fact that because of the Sunset Clause the government had
to pass legislation soon on this issue, or the fact that the government had
recently issued a White Paper announcing a policy in favour of legislation
permitting large insurance companies like Manulife to demutualize.  Instead, Manulife’s representative
did his best to give the Supervisor and those at the public hearing the
impression that the possibility of demutualization was remote and that the
policyholders should receive little or nothing for their ownership rights.  That was what he did publicly;
privately, around the same time, he told Manulife to work on
demutualization.

12.
Based
on the foregoing, the Barbados Supervisor of Insurance granted his
“public interest” approval to the transaction.  In Canada, the Canadian Minister of
Finance relied heavily on that approval in assessing whether the transaction
was in the public interest.  In
making his decision, the Minister did not invite submissions from the
policyholders and did not hold a public hearing.  He received submissions and information
only from Manulife.  He also granted
“public interest” approval to the transaction.

13.
Slightly
over a year after the transaction closed, the Manulife board of directors
announced that Manulife would demutualize as soon as the law permitting it came
into force.  Manulife’s
policyholders, including those in the U.S.
and Hong Kong whose rights were preserved in
the transfer of their businesses, benefited greatly when their ownership
interests were bought out in the demutualization.

14.
According
to Manulife, the Barbados
policyholders were no longer policyholders when Manulife demutualized.  According to Manulife, their ownership
rights were extinguished when Manulife unilaterally decided to transfer the Barbados
business and the transfer was approved.
The Barbados
policyholders did not obtain the substantial benefits of demutualization that
the other policyholders received.

15.       Therefore,
the plaintiffs and the proposed class, all of whom are Barbados
policyholders, must now embark on the uncertain and expensive course of class
action litigation against Manulife in order to obtain compensation for their
ownership rights.  The plaintiffs
assert two causes of action, negligence and breach of fiduciary duty, against
Manulife for failing to protect the ownership rights of the Barbados policyholders.  In this motion, the plaintiffs seek the
certification of this proceeding as a class action under the Class Proceedings
Act, 1992.  The test for
certification is met.

(b)
Sample responding party’s introduction: major motion,
application or end of trial submission

1.
In
this action, the plaintiffs allege that Manulife negligently and in breach of
its fiduciary duty disregarded the ownership interests of the 8,043
policyholders in Barbados
when it transferred its insurance business in the Barbados to a third party, Life of
Barbados.  The facts are fully set
out in the plaintiff’s factum submitted in support of its motion for
certification.

2.
Manulife’s
transfer of its Barbados
insurance business to Life of Barbados required the “public
interest” regulatory approval of the Barbados Supervisor of Insurance
under the Insurance Act (Barbados).  Looking at a broad array of factors, the
Supervisor ruled that the transfer (or “Scheme” as it is known in
the Barbados
Insurance Act) was in the public
interest and he approved it.  The Insurance Act (Barbados)
provides that when the Supervisor approves the "Scheme", it is
“binding” on all concerned.
None of the policyholders appealed the approval.

3.
In
this action, the plaintiffs accept that the "Scheme" or transaction
is binding in the sense that it cannot be set aside.  They accept that Manulife’s Barbados
insurance business was validly transferred to Life of Barbados.  They do not seek the rescission or
quashing of the May 30, 1996 agreement that transferred the business from
Manulife to Life of Barbados.  They
do not allege that the Supervisor’s approval is void.

4.
The
plaintiffs’ claims in this action essentially involve two series of
questions, neither of which calls into question the validity of the Supervisor’s
approval in Barbados
or the binding nature of the transfer:

(a)       What was
the effect of the transfer?  Did the
transfer have the legal effect of extinguishing the class members’
ownership interests in Manulife?
Did the transfer have the legal effect of extinguishing the causes of
action of breach of fiduciary duty and negligence?

(b)       Assuming
the transfer did not extinguish the causes of action of breach of fiduciary
duty and negligence, did the defendant breach its fiduciary duty or duty of
care to the class members by disregarding and failing to protect the class
members’ ownership interests?

5.
Manulife
now seeks to strike out the plaintiffs’ action.  Having completed its “de minimis transaction”, which it
says extinguished the ownership rights of the 8,043 Barbados policyholders, and
having engaged in questionable tactics to obtain the approval of the Barbados
Supervisor of Insurance - an approval that merely makes the “de minimis transaction”
permanent  and irreversible -
Manulife says that the action is “frivolous, vexatious and an abuse of
process”.  Manulife says that
the action is nothing more than a relitigation of issues determined by the
Barbados Supervisor of Insurance.

6.
The
private law questions that the plaintiffs raise in this proceeding, set out in
paragraph 4, above, have not been determined by the Barbados Supervisor of
Insurance, a public law official.
He did not have the jurisdiction to do so and he did not do so.  Manulife is a Canadian corporation
resident in Canada whose
powers, obligations and responsibilities are governed by Canadian common law
and the Insurance Companies Act (Canada).  The policyholders are individuals
residing in various countries who held participating policies of Manulife and
who, as a result, had ownership rights and other rights under Canadian common
law and the Insurance Companies Act (Canada).  The Insurance
Act (Barbados)
does not remit these Canadian private law issues to the Supervisor of Insurance
for adjudication.  Canadian courts,
which have exclusive jurisdiction over these subject-matters, would not
recognize and enforce a decision on these Canadian private law matters by a
non-judicial, administrative, public law official in the Barbados –
especially where, as in this case, those summary, administrative proceedings
smack of fundamental unfairness and Manulife had some role in that unfairness.

7.         As will be seen
below, in order to succeed in its motion, Manulife must establish that it is
“plain and obvious” and “beyond doubt” that six
separate propositions (set out in paragraph 19, below) are well-founded.  For the reasons set out below, none of these propositions are
well-founded.  Manulife’s
motion to strike out this proceeding should be dismissed.

(c)       Sample
introduction in a factum dealing with cross-applications or cross-motions

1.         Cartree Enterprises
Limited submits this factum in response to Gartree Investments Limited’s
application under the Partition Act for
the forced partition and sale of certain properties.  The properties, jointly and equally
owned by the three parties in this proceeding, are the main asset of the three
parties’ joint business, a business which is ongoing and viable.

2.         Cartree also submits
this factum in support of a counter-application it has brought.  In this counter-application, Cartree
proposes a remedy other than forced partition and sale - a remedy that is less draconian, a remedy that would
preserve the viable joint business and a remedy that is consistent with the
fact that the business has been operated as a partnership or as a joint
business.  In its
counter-application, Cartree seeks an order that Gartree’s interest in
these properties be valued and bought out by Cartree and Elgtree at better than
fair market value - a full 10% over fair market
value without any minority discount.
Since the sort of forced, public sale under the Partition Act is avoided, there would be no need to pay a real
estate commission or other expenses.
This savings would add a further 5% above fair market value to
Gartree.  What reason would Gartree
have to refuse this?

3.         The
reason is that Gartree’s application is the latest salvo in a
long-running family feud.  Each of
the three corporate parties in this proceeding is owned by one of three sisters
in the family.  The sister who owns
Gartree (and that sister’s particular family) is on one side of the
feud.  On the other side are the two
other sisters (and their particular families) and their companies, Cartree and
Elgtree.

4.         The bitter nature of
the feud explains Gartree’s position in this case.  Gartree wants to be taken out of the
parties’ joint business.  But
rather than accepting a valuation and buy out of its interest in the properties
by the other two parties at significantly
greater than fair market value, Gartree prefers to have the properties
exposed to a forced sale, which shall result in injury to the viable joint
business which the two other parties wish to continue to operate.  As will be seen below, there is also
evidence that Gartree intends, through the forced sale under the Partition Act, to cause the other two
parties to suffer a significant “tax hit”.

5.         The valuation and
buy out of Gartree’s interest by the two other parties at 10% greater
than fair market value without minority discount is more than fair and, as will be seen below, this has been confirmed
by unanswered expert valuation evidence.
If the counter-application is granted, Gartree’s departure from
the parties’ joint business will take place on terms that are more than
fair, without unnecessary injury to the other two parties or their ongoing,
viable joint business.  Accordingly,
Cartree’s counter-application for a valuation and buy out on these terms
that are more than fair should be granted and Gartree’s application for
forced partition and sale of the properties should be dismissed.

F.      Example of a
Legal Overview Paragraph[7]

7.         In order for this
Tribunal to have jurisdiction over the respondents, two requirements must both
be satisfied:

●          the applicants must
be able to serve the respondents and make them subject to the jurisdiction of
this Tribunal — in other words, this Tribunal must have personal
jurisdiction over the respondents; and

●         this
Tribunal must have jurisdiction over the subject-matter of the
applicant’s application — in other words, substantive jurisdiction.

Competition Law of Canada, § 13.06
(Updated as of July, 1997)

8.         This Tribunal lacks
personal jurisdiction over the respondents <parties’ names>, which
are both non-Canadian entities with no presence whatsoever in Canada.  It also lacks substantive jurisdiction
over this application.

9.         In particular:

(1)       This Tribunal does not have, and
cannot obtain, jurisdiction over the person of <parties> as they are
outside of Canada
and the Act does not provide for service beyond the jurisdiction (see
paragraphs 38-44, below).

(2)       The substantive jurisdiction of
this Tribunal is limited to what is set out in the Act (see paragraphs 13-15,
below).  The purported basis for the
application is s. 75 of the Act.
This Application is outside s. 75 of the Act, and thus this Tribunal
cannot determine it, for the following reasons:

(a)       section 75 of the Act, properly
interpreted, empowers this Tribunal to grant relief only against persons
present in Canada in respect of acts in Canada (see paragraphs 16-17,
below);  the respondents are outside
Canada;

(b)       clear statutory language is
required to extend section 75 to acts of foreign parties committed abroad (see
paragraphs 18-27, below);  all of
the respondents’ alleged acts took place outside Canada;

(c)        section 75 of the Act
applies only to “suppliers” and none of the respondents are
“suppliers”; accordingly this Tribunal does not have substantive
jurisdiction to make an Order under s. 75 of the Act (see paragraphs 28-30,
below);

(d)       there is no
“product” within the meaning of s. 75 of the Act and so this
Tribunal does not have substantive jurisdiction to make an Order under s. 75 of
the Act (see paragraphs 31-33, below); and

(e)       at its highest, the
applicant’s claim for relief falls within s. 32 of the Act, not s. 75 of
the Act, and so it can only be determined by the Federal Court, not this
Tribunal (see paragraphs 34-37, below).

G.      Example of an
Overview in a Respondent's Factum[8]

1.                     The
Respondent obtained information that many hundreds of members, friends and
associates of a known outlaw motorcycle gang, the Paradise Riders, were to
gather on four weekends on a small property in the middle of the quiet rural
hamlet of Caesarea, population 700.  The Respondent had ample information
about this outlaw motorcycle gang, its tendency to engage in serious crime and
its connections with other outlaw motorcycle gangs, including the Hell's Angels.  In addition to the public safety and public
order concerns posed by this, the Respondent had legitimate highway safety
concerns such as vehicle fitness, licencing and insurance.

2.                     Therefore,
the Respondent established road checks near Caesarea.  At these road checks, the Respondent
stopped members, friends and associates of this outlaw motorcycle gang. The
stops lasted only 3 to 20 minutes and entailed investigation of licence and
insurance, a CPIC check and a visual vehicle inspection.  The trial judge found that the stops,
based in part as they were on highway safety concerns, were authorized by the Highway Traffic Act.  There were no interrogations or broader
investigations.

3.                     Three
members of this outlaw motorcycle gang now complain that they were improperly
singled out and that these limited stops were detentions in a "temporary,
but very real 'police state'", under practices which are
"institutionalized in authoritarian and totalitarian states", in
order to be "identified and subjected to police dominance".[9]  They submit that the detentions
infringed their rights under s. 9 of the Charter.

4.                     This
Court has already constitutionally upheld vehicle stops, verifications of
licence and insurance, vehicle inspections and CPIC checks.  It has upheld such activities even when
conducted on a random basis.
In this case, however, the stops were not random: the Respondent stopped
the Paradise Riders for good, verifiable reasons.  The trial judge found as a fact that the
Respondent had rationally-based, substantial concerns about highway safety and
potential breaches of the peace associated with the arrival of the Paradise
Riders which had "a very significant potential for violence and
disruption".  Accordingly, the
Respondent took reasonable steps, authorized by statute and common law, in
order to achieve those important purposes without unnecessarily or unreasonably
interfering with civil liberties.
There is no s. 9 Charter breach.

H.
A Legal Overview
in a Respondent's Factum[10]

A.        The
Appellants' Submissions

38.                   The
Appellants submit that the Respondent's road stops infringed s. 9 of the
Charter because they were not authorized by any legislative provision or any
common law power.  They assert that
this case involves persons, "deemed of lesser worth by the police",
who were detained in a "temporary, but very real 'police state'",
under practices which are "institutionalized in authoritarian and
totalitarian states", in order to be "identified and subjected to
police dominance".  Those
persons are said to have been singled out based upon "nefarious
'profiling'" based on "suspected group stereotypes", "guilt
by association" and "disreputable reputation".  The detentions "raise the spectre
of unrestrained police conduct", conduct which is "such as would be
seen in a police state", based on "police stereotypes based on race
or method of dress", leading to unspecified "nefarious
consequences".  They warn the
Court that if it dismisses the appeal, it will "embark down a path that
could easily descend into greater and greater abuses", such as targeting
on the basis of race, and the distinction between "a totalitarian society
and a state subject to the rule of law" will be ignored.  The Appellants, referring to a
dictionary and not the jurisprudence of this Court, define
"arbitrary" in s. 9 of the Charter as meaning "despotic",
the synonyms of which are said to be "totalitarian, tyrannical and
dictatorial".

39.                   The
Appellants rarely refer to or cite the actual evidence in the record.  Instead, as is seen above, they prefer
to leap to characterizations which are not based on the evidence and to present
dark and ominous scenarios, both with some measure of overstatement.  The Appellants' analysis of s. 9 of the
Charter does not go much beyond taking the characterizations and scenarios
which they have fashioned and then comparing them with supposed practices in
totalitarian, tyrannical and dictatorial regimes and police states.  As far as the legal analysis is
concerned, the Appellants dismiss in just one single sentence the possibility
that the Respondent's actions were authorized by the Police Services Act and the common law.  As far as s. 9 of the Charter is
concerned, the Appellants fleetingly refer to only two decisions of this Court
concerning s. 9 of the Charter and three pre-1991 decisions of this Court
concerning s. 8 of the Charter.
Except for attempting to distinguish two lower court s. 9 authorities
which are hostile to their position and which were relied upon by the Court
below, they fail to mention any s. 9 authorities.  Finally, the Appellants fail to address
how this Court should balance the important needs of public safety, public
order, peacekeeping and highway safety on the one hand with the vital
constitutional rights of individuals on the other hand — perhaps because
they only deal with the latter and never acknowledge the existence of the
former.

B.        The
Respondent's submissions: an introduction

40.                   The
Respondent submits that the road stops in this case did not infringe s. 9 of
the Charter.  The road stops were
authorized by s. 216(1) of the Highway
Traffic Act, R.S.O. 1990, c. H.8, were conducted for good reason, and were
limited in scope and duration.  As
such, they were not "arbitrary" within the meaning of this Court's
jurisprudence under s. 9 of the Charter.

41.                   Further,
the Respondent submits that the road stops were authorized by the common law
powers or ancillary powers of police to keep the peace and preserve public
safety.  These powers have been
codified in  s. 42 of the Police Services Act, R.S.O. 1990, c.
P.15.

42.                   In
this case, the road stops were based on a rationally-based concern, founded
upon a wealth of evidence and experience, that there was a risk of material
harm to public safety and public order posed by the gathering of hundreds of
members, friends and associates of the Paradise Riders, an outlaw motorcycle
gang, in the small town of Caesarea.   The Respondent was also concerned
about highway safety, prevention of crime and intelligence gathering.  The road stops took place in two
particular locations of concern on four particular weekends.  The road stops were brief and
businesslike and succeeded in their objectives with a minimum of interference
with civil liberties.

43.                   The
Respondent's conduct in this case is even more defensible than the police
conduct unanimously upheld by the Supreme Court in R. v. Wilson, [1990] 1 S.C.R. 1291.[11]  In that case, a police officer acting
under the authority of the Highway
Traffic Act, stopped an individual who was driving from a hotel shortly
after bar closing time.  The police
officer had no reason to believe the driver was doing anything wrong other than
his general experience that those driving from hotels shortly after bar closing
time sometimes are impaired.  The
stop was not part of a comprehensive program, but rather was a random stop made
on the spot by a single officer.
The Court in Wilson unanimously upheld the stop.  There was sufficient articulable cause
— i.e., sufficient reason,
based on evidence and experience — to take proactive measures under the
authority of the Highway Traffic Act
in the interests of public safety and public order, to stop the driver.

44.                   In
the case at bar, statutory authority for the roadcheck stops exists under the Highway Traffic Act.  Further, as mentioned in paragraphs 6-22
and 26-27, above, the Record of this case contains much more than the sort of
general experience which gave rise to the apprehension of risk to public harm
and public safety in Wilson.   The Record of the case at bar is
comprised of voluminous evidence, expert analysis and specific experience
supporting an apprehension of significant risk and this was recognized by the
trial judge, whose findings of fact are binding.  Further, in Wilson,
there were no specific circumstances such as erratic driving of the automobile
that would give rise to a specific apprehension of harm.  However, in the case at bar, the
Respondent knew in advance that hundreds of members, friends and associates of
the Paradise Riders, a known outlaw motorcycle gang, were going to converge
upon tiny Caesarea, giving rise to a very
specific apprehension of harm.  The
case at bar is even stronger than Wilson.

[1] Written in 2004 while the author was a partner of
Heenan Blaikie LLP.

[2] On the whole, many of the examples are too wordy.  From the perspective of six years’
more experience, I would simplify and shorten my writing and use even plainer
language.

[3]           The
objective here was simply to make the judgment on the motion appear extremely
unfair and to cast the client’s case in as positive a light as
possible.  The introduction
concludes with any number of reasons that the court could seize upon in order
to do justice in the case.

[4]           When
I was a lawyer, I normally preferred to give more information in introductions
than appears here.  Nevertheless, even
this simple introduction will allow the judge to read the statement of facts in
the factum more intelligently because he or she will know what legal point is
intended to be raised.   This
introduction is designed simply to flag the “bottom line” submission
so the judge can make connections as he or she reads the facts. (Knowing what I
know now, I would endorse this short introduction and would strive to keep all
of my introductions short.)

[5]           In
judicial review applications, the judge probably wants to know as soon as
possible what decision is being attacked, the statutory authority for the
decision and the administrative law issue that is being raised.  It is useful to put this information in
the introduction.

[6]           Written
submissions after a lengthy trial are very tricky to write.  The problem is that there is usually a
tremendous amount of detail for you to organize and you may be dealing with a
trial judge who is lost in the detail and perhaps impatient.  Therefore, in addition to the normal
objectives of capturing the moral high ground and showing why legally your
client should win, a good introduction to lengthy written submissions should
simplify the case for the judge by providing order to the chaos.  As well, it is often a good idea to give
a roadmap through the various witnesses’ evidence, highlighting fatal
gaps in your opponent’s case and identifying where your witnesses have
not been rebutted.  The last
paragraph in this introduction tries to do this.  Introductions to lengthy written
submissions have more ambitious objectives than, say, a factum submitted in a
standard weekly court motion and so they can be longer.  They should still be tightly written and
crisp and should make the judge feel that it is very easy for him or her to
find in your client’s favour.

[7]           I
often include an overview paragraph at the start of the legal section of the
factum.  This is often in addition
to an introduction at the beginning of the factum.  In this example, the overview paragraph
was particularly important because there were many arguments that were being
run and we wanted the reader to keep them straight in his or her mind.  These paragraphs appeared under the
heading “Introduction” at the start of the “Law” part
of the factum.

[8]           These
paragraphs are introductory paragraphs in a respondent's factum in an
appeal.  Respondents have their own
story to tell.  Your introduction
should alert the reader to the themes that the respondent intends to develop,
themes which may be different than what the appellant has developed.  Like all introductions, the respondent's
introduction should try to capture the moral high ground and set out, briefly,
why ruling in the respondent's favour is appropriate.  An introduction in a respondent's factum
should leave the judge thinking that the appellants have not told the whole
story and that there is good reason to doubt the correctness of their case.

[9]           One
technique which a respondent can employ, even in an introduction, is to
identify and single out overstatement in an appellant's factum.  This can impair the overall credibility
of the appellant's submissions and enhance the credibility of your submissions.

[10]          In
complex factums, I often like to provide an overview of the parties' arguments
at the beginning of the "argument" part of the factum.  This gives me the opportunity to identify
the weaknesses in the appellant's factum, including overstatements and errors,
while permitting me to make my client's position appear reasonable.  One technique is to reduce the appellant's
arguments to a "strawman" (without being inaccurate about it) and
then tear apart the "strawman".
This particular series of paragraphs appeared at the start of the
"argument" section of the respondent's factum, after a very clinical
and detailed description of the facts with ample evidentiary references.  The colourful and extreme language set
out in para. 38 was plucked from various portions of the appellant's
Factum.  The appellant's language
set out in para. 38 by looks over-wrought and inaccurate, especially after the clinical
and not-so-extreme but very well-supported statement of facts which the judge
has just read in the respondent's factum.
I felt this was a useful way to try to diminish the credence of the appellant's
submissions.

[11]          In
an introduction to a complex factum, particularly a respondent's factum, I
often like to "marry" my case to another case, in an effort to
suggest that ruling against my client will be jurisprudentially difficult.