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Appeals - Factum. Hyde v. VanMar Constructors Inc. [page limits]
In Hyde v. VanMar Constructors Inc. (Div Ct, 2026) the Divisional Court comments on excessive appeal factum page-length (comments which apply not only to Small Claims appeals):[5] Filing a factum of 267 pages in length in a Small Claims Court appeal is preposterous. Defending that preposterous filing on the basis that the appeal is fact-driven and includes allegations of bias, while also resisting production of complete transcripts, is, likewise, an untenable position. Challenging these directions of the case management judge shows a lack of judgment, given the high level of deference accorded such an order on a motion to review it: Lynch v. Ross Wilson Holdings Ltd., 2026 ONSC 2471 (Div. Ct.), paras. 60-61, and the cases cited therein. .... . Nady v. Al Sadi [use of AI in facta]
In Nady v. Al Sadi (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a Small Claims Court appeal, this brought against a finding that the appellant "had breached the contract that he had with the Respondents to babysit their cat, Mylo, by refusing to return the cat to them at the end of the term."
Here the court considers the use of AI in appeal factums:d. Use of artificial intelligence
[25] At the hearing of the appeal, in answer to a question posed by the Court, Mr. Nady readily admitted that he had used artificial intelligence (“AI”) to prepare his Factum. The question of the use of AI was raised with Mr. Nady because his Factum includes several references to cases that do not exist, as well as several references to cases that do not support the propositions for which they are cited. Moreover, the citations in Mr. Nady’s Factum do not include a reference to a specific paragraph or page number.
[26] The Consolidated Practice Direction for Divisional Court Proceedings includes a section on the use of AI for court proceedings (section 12). It states, in part:153. Maintaining the integrity of the justice system is the shared responsibility of all justice sector participants. As officers of the court, lawyers play a pronounced role in ensuring its fair and proper administration. Without exception, however, it is the responsibility of all counsel and litigants to guarantee accuracy when preparing materials for use in court proceedings, and particularly when using AI, regardless of whether they directly interacted with the technology. The misuse of AI is detrimental to the justice system and can occur in any number of ways. Most often, it occurs when counsel or litigants carelessly rely on fictitious authorities generated by AI, commonly referred to as “hallucinations”. Hallucinations can consist of non-existent cases, mischaracterizations of case law, and fabricated quotations. To avoid these risks, counsel and litigants must exercise careful, informed, and ongoing oversight at all times when they or their staff use AI for court proceedings. The court will not tolerate inadvertence in this regard.
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For Counsel & Litigants
155. Use authoritative sources to verify citations. AI-generated references may include incorrect or fictitious legal authorities. All legal information obtained using the assistance of AI must be verified against trusted and authoritative sources.
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Potential Sanctions for Misuse of Artificial Intelligence for Court Proceedings
158. The court has a range of powers to ensure that counsel and litigants comply with their duties to the court. Where those duties are not complied with, the court’s powers include, but are not limited to, public reprimand of the counsel or litigant, the imposition of cost orders, adjourning a hearing or dismissing the proceeding, the initiation of contempt proceedings, and in regard to counsel, referral to the Law Society of Ontario. In each instance, the court’s response will depend on the specific facts and circumstances of the case. [27] The Practice Direction also reminds litigants that each citation to an authority in a factum must include a reference to the relevant paragraph, provision or page number of the authority.
[28] Breaches of the rules set out above have time-consuming effects for the Court and opposing parties who must spend time trying to locate authorities that do not exist, and trying to determine whether a particular authority supports the proposition for which it is cited.
[29] Mr. Nady’s failure to use AI responsibly will be taken into consideration when determining the issue of costs.
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[44] However, in assessing the proportionality of the partial indemnity costs requested by the Respondents, it is appropriate to consider the numerous “irregularities” in the conduct of this appeal, and Mr. Nady’s failure to use AI responsibly. This means that the partial indemnity costs that are appropriate and proportionate in this case are of a higher amount than the partial indemnity costs that would usually be appropriate and proportionate in an appeal from a judgment of the Small Claims Court that does not have the same vexing circumstances. This is especially the case since Justice Nakatsuru’s directions dated December 3, 2025 specifically state that the Respondents could raise their concerns about the conduct of the appeal in their costs submissions, which put Mr. Nady on notice that higher costs would very likely be sought. . Bacchus v. Royal College of Dental Surgeons of Ontario []
In Bacchus v. Royal College of Dental Surgeons of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an RHPA appeal, this brought against "the decision of a Committee of the Discipline Committee of the Royal College of Dental Surgeons" finding that the appellant "committed professional misconduct (the “Merits Decisions”), and the Committee decision ... revoking Dr Bacchus’ license and ordering him to pay costs of $451,461.61 (among other orders) (the “Penalty Decision”).".
Here the court limits itself on appellate review to only "facts as found by the Committee", expressly holding that "(t)his court does not immerse itself in the record below and decide what findings it would make if it was hearing the case at first instance" (note this is an appeal, not a JR).
While it's true that the SOR for appeals from a Tribunal is the standard appellate SOR ['correctness' for legal issues, 'palpable and overriding error' for errors of fact and errors of mixed fact and law], IMHO
this approach (below) runs perilously close to unduly minimizing the appellant's submissions. Why else do the court Rules call for appeal and exhibit books but for their use in argument, to which facta are integral? Perhaps this a case of poorly-referenced factum argument, but if so the approach taken here strikes me as extreme - particularly in a self-presenting appellant as here.:[7] In his factum, the Appellant sets out an account of the facts that are not referenced to the Committee’s decision (Factum, paras. 12-25). This is an error on an appeal. The facts in this court are the facts as found by the Committee. Where a party submits that a tribunal made palpable and overriding errors of fact, the starting place for analysis is the facts, as found by the tribunal, and then submissions may be made as to why particular findings are palpable and overriding errors. It is improper to argue a version of the facts untied to the findings below: an appeal in this court is not a “re-do” of the hearing below. This court does not immerse itself in the record below and decide what findings it would make if it was hearing the case at first instance. See: Feng v. Ontario Securities Commission, 2025 ONSC 2268, para. 12 (Div. Ct.); H.H. v. Canada (Attorney General), 2005 SCC 25, para. 4; Sayers Foods Ltd. v. Gay Company Ltd., 2026 ONSC 918, para. 34 (Div. Ct.). . Stile Carpentry Ltd. v. 2004424 Ontario Inc.
In Stile Carpentry Ltd. v. 2004424 Ontario Inc. (Ont CA, 2025) the Ontario Court of Appeal denied a R15.01(2) motion for permission to allow a corporation to be represented by a non-lawyer.
Here the moving party had in past filed facta:... with the court that are replete with fabricated legal citations. They reference non-existent cases and miscite genuine cases for propositions that those cases do not even address. They provide notional hyperlinks to authorities that link instead to wholly irrelevant documents. They reference provisions of statutes that do not exist. Quoted text from case law and statutes are completely fabricated. .....
[4] Rule 15.01(2) provides:A party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court. The starting point is that corporations must be represented by counsel. The grant of leave is exceptional. As Huscroft J.A. noted in GlycoBioSciences Inc. (Glyco) v. Industria Farmaceutica Andromaco, S.A., de C.V. (Andromaco), 2024 ONCA 481, aff’d 2024 ONCA 760, at para. 6, although judges have a discretion to grant leave, that discretion must not be exercised in a way that normalizes the practice and undermines the rule.
[5] The effective operation of the legal system is premised on the participation of a well-trained and regulated body of professionals. A critical question, from the perspective of maintaining the integrity of the justice system, is whether a proposed representative is not only reasonably capable of comprehending the issues and setting out the position of the corporation, but also of advocating in a manner that meets the professional ethical standards expected of solicitors.
[6] Furthering access to justice can be a reason to grant leave: Stayside Corporation Inc. v. Cyndric Group Inc., 2024 ONCA 630, at para. 11. But as Glyco explains, at para. 7, it is not the only relevant consideration:A non-lawyer who is closely tied to the corporation granted leave under r. 15.01(2) is akin to a self-represented party, but the separate legal personhood of the corporation means, in effect, that the non-lawyer is providing legal services to another person, contrary to s. 26.1(1) of the Law Society Act, R.S.O. 1990, c. L.8. Moreover, non-lawyers are not bound by the Rules of Professional Conduct, nor are they subject to the personal financial consequences associated with cost orders that self-represented litigants face: Leisure Farm Construction Limited v. Dalew Farms Inc. et.al., 2021 ONSC 105at paras. 12-15. Permitting a non-lawyer to act also risks creating an undue burden on the respondents and the court. [7] The concerns articulated in Glyco of non-lawyers imposing an undue burden are abundantly displayed in this case.
[8] It is not disputed that Mr. Paraskevopoulos has a sophisticated understanding of commercial property leases. But his recent efforts at representing the corporation amply demonstrate that he is unable to do so in a manner that does not impose unacceptable costs on both opposing counsel and the court. He has, on multiple occasions, filed factums with the court that are replete with fabricated legal citations. They reference non-existent cases and miscite genuine cases for propositions that those cases do not even address. They provide notional hyperlinks to authorities that link instead to wholly irrelevant documents. They reference provisions of statutes that do not exist. Quoted text from case law and statutes are completely fabricated.
[9] A solicitor who acted in such a manner – whether out of duplicity or incompetence – would rightly face severe consequences: professional disciplinary proceedings and punishment ranging from a citation to fine or disbarment, in addition to public opprobrium. But a non-lawyer faces none of these sanctions, notwithstanding the costs that such conduct imposes on opposing parties and the court, who are left to identify and expose the fabrications. A rigorous application of r. 15.01(2) is one of the few tools currently available to courts to apply to non‑lawyers to manage this risk. . Feng v. Ontario Securities Commission
In Feng v. Ontario Securities Commission (Div Ct, 2025) the Divisional Court dismissed an appeal, here from "decisions of the Capital Markets Tribunal (the “Tribunal”) finding that the Appellants engaged in a course of conduct that they knew or ought to have known perpetrated a fraud on investors" [under SA s.126.1(1)(b)].
Here the court criticized the drafting of the appellant's factum as drawing on the evidentiary record, not the found facts in the reasons for decision - which is proper:“Facts” on Appeal
[11] In their factum, the Appellants set out their statement of facts, cited to the record before the Tribunal, running for 82 paragraphs over 21 pages.
[12] The “facts” in this court are the facts as found by the Tribunal. The “Facts” section of a factum should set out the facts as found below. When a party argues that there are palpable and overriding errors of fact, the starting position is to set out the facts, as found by the Tribunal, and then to identify those findings of fact that are challenged on appeal. It is not helpful to set out a version of the facts cited to the record, not cited to the Tribunal’s findings, as the factual overview of the case. An appeal is not a “re-do” before this court based on the record below, but rather a review of the decision below. See H.H. v. Canada (Attorney General), 2005 SCC 25, para. 4. . Boyer v. Callidus Capital Corporation
In Boyer v. Callidus Capital Corporation (Ont CA, 2024) the Ontario Court of Appeal, faced with an respondent being refused filing of a too-long factum, takes the oppourtunity to expound on facta practice at large:[3] Rule 61 regulates three key elements of appeal factums: their structure, their content, and their length.
[4] Rule 61.11 governs an appellant’s factum and deals, in part, with those three elements:61.11 (1) The appellant’s factum shall meet the requirements of rule 4.06.1, be signed by the appellant’s lawyer, or on the lawyer’s behalf by someone the lawyer has specifically authorized, and consist of,
(a) Part I, containing a statement identifying the appellant and the court or tribunal appealed from and stating the result in that court or tribunal;
(b) Part II, containing a concise overview statement describing the nature of the case and of the issues;
(c) Part III, containing a concise summary of the facts relevant to the issues on the appeal, with such reference to the transcript of evidence and the exhibits as is necessary;
(d) Part IV, containing a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
(d.1) Part V, containing a statement of the order that the appellate court will be asked to make, including any order for costs;
(e) a certificate stating,
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(iii) that the factum complies with subrule (3) or, if applicable, with an order referred to in that subrule,
(iv) the number of words contained in Parts I to V, and
(v) that the person signing the certificate is satisfied as to the authenticity of every authority listed in Schedule A;
(f) Schedule A, containing a list of the authorities referred to; and
(g) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws.
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(3) Parts I to V shall not exceed 9,200 words and 40 pages, except with leave of the court.
(4) In counting words for the purposes of subclause (1) (e) (iv) and subrule (3), every word used in Parts I to V of the factum shall be counted regardless of where it is used, including, for greater certainty, words used in citations, footnotes, headings or charts, diagrams or other visual aids. [Emphasis added.] [5] Rule 61.12 governs a respondent’s factum. It also deals with those three elements. The rule provides, in part:(3) The respondent’s factum shall meet the requirements of rule 4.06.1, be signed by the respondent’s lawyer, or on the lawyer’s behalf by someone the lawyer has specifically authorized, and consist of,
(a) Part I, containing a concise overview statement describing the nature of the case and of the issues;
(b) Part II, containing a statement of the facts in the appellant’s summary of relevant facts that the respondent accepts as correct and those facts with which the respondent disagrees, and a concise summary of any additional facts relied on, with such reference to the transcript of evidence and the exhibits as is necessary;
(c) Part III, containing the position of the respondent with respect to each issue raised by the appellant, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
(d) Part IV, containing a statement of any additional issues raised by the respondent, the statement of each issue to be followed by a concise argument with reference to the law and authorities relating to that issue;
(e) Part V, containing a statement of the order that the appellate court will be asked to make, including any order for costs;
(f) a certificate stating,
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(iii) that the factum complies with subrule (5.1) or, if applicable, with an order referred to in that subrule,
(iv) the number of words contained in Parts I to V, and
(v) that the person signing the certificate is satisfied as to the authenticity of every authority listed in Schedule A;
(g) Schedule A, containing a list of the authorities referred to; and
(h) Schedule B, containing the text of all relevant provisions of statutes, regulations and by-laws that are not included in Schedule B to the appellant’s factum.
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(5.1) Parts I to V shall not exceed 9,200 words and 40 pages, except with leave of the court.
(5.2) In counting words for the purposes of subclause (3) (f) (iv) and subrule (5.1), every word used in Parts I to V of the factum shall be counted regardless of where it is used, including, for greater certainty, words used in citations, footnotes, headings or charts, diagrams or other visual aids. [Emphasis added.] [6] The factum tendered last week by the respondent infringed the rules governing a factum’s structure because it added a series of schedules – C, D, and E – not recognized by the rules.
[7] The respondent’s proffered factum infringed the rules about a factum’s content because Schedules C, D, and E set out “additional facts relied on, with such reference to the transcript of evidence and the exhibits as is necessary”. Those facts should have been set out in Part II of the factum: r. 61.12(3)(b).
[8] That said, that the respondent presented those facts in a table-format was perfectly acceptable. The rules do not micro-manage how factums should present facts. On the contrary, the rules enable great creativity by parties in presenting the facts they wish to draw attention to, whether by using: tables, such as the respondent desires; charts; photographs; survey sketches; maps; or even hyperlinks to media content, such as CCTV footage.
[9] The respondent’s proffered factum also infringed the rules about a factum’s length. By my count, Parts I - V contained approximately 7,300 words; Schedules C, D, and E contained an additional 8,100 words or so. Combined, those portions of the factum were almost 60 pages in length, far in excess of the length prescribed by the Rules.
[10] Given that the respondent’s proffered factum did not comply with the Rules, registry staff quite properly refused to accept it. They should continue that course of action in future instances of attempts to file non-compliant factums.
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[13] I would not take issue with counsel who, for forensic or advocacy reasons, choose to place material prescribed for the main part of the factum – whether related to facts or law – into schedules at the end of a factum, even though such schedules are not contemplated by the Rules. There may be legitimate forensic reasons to do so, such as not interrupting the flow of written argument on an issue by inserting clunky tables or charts. It may well be that those tables and charts would be of great use to a panel in understanding an appeal. If they are placed in appendices that follow the prescribed Schedules A and B, in my view that would amount merely to a minor breach of the Rules that could be overlooked. However – and this is a big “however” – the word count and length of those additional schedules must be taken into account in determining whether the factum complies with the limits set by r. 61.11(3), in the case of an appellant’s factum, or r. 61.12(5.1), in the case of a respondent’s factum. Put more simply, creating additional end-of-factum schedules that contain matters the Rules contemplate will be placed in the main body of the factum is not a permissible way to avoid the Rules’ limits on factum length.
[14] Of course, circumstances may arise where the Rules’ factum length limits could hamper a party from fairly presenting its appeal argument. Such cases do exist. In those circumstances, it is always open to a party to seek permission from the court to file a factum that exceeds the length prescribed by the Rules. The opposing party may consent if afforded the same opportunity with its factum. If the opposing party refuses, the matter can be brought before a judge very quickly in our court, and the judge can deal with the request in a fashion that ensures procedural fairness to all parties.
[15] But the parties must remember that as a general rule our court discourages parties from operating on the basis that a party can first act in a non-compliant fashion and then seek forgiveness. Due regard for the court’s process, including fairness to the opposing party, requires that parties should first ask for dispensation from the Rules before attempting to file non-compliant documents. . Goberdhan v. Knights of Columbus
In Goberdhan v. Knights of Columbus (Ont CA, 2023) the Court of Appeal noted that appeals to it do not allow for a reply factum [while a motion for leave to appeal does:R61.03.1(11-13)]. Here an appellant moved for permission to file a reply factum, which was denied.
The court took the oppourtunity to expound on the utility and function of written and oral appeal arguments, and that of a 'sur-reply' (a further) stage of exchanges:[3] The appellant seeks to file a reply factum to respond to the respondent’s position, in its factum, that s. 7(6) of the Arbitration Act, 1991, S.O. 1991, c. 17 precludes an appeal of the motion judge’s order. The appellant relies heavily on the decision of Brown J.A. in Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 4 as authority for the proposition that “there is a strong presumption that leave to file a reply factum” should be granted in civil appeals.
[4] The Rules of Civil Procedure, R.R.O. 1990, Reg. 194 do not provide for the filing of a reply factum, except on a motion for leave to appeal to this court. I do not share my colleague’s enthusiasm for imposing what is, in essence, a judicial amendment to the Rules of Civil Procedure that would create an automatic right to file a reply factum. My colleague says that the filing of a reply factum “would assist the panel to understand, before the oral hearing, precisely how the parties join issue on the key matters on appeal.” In my view, that understanding ought to arise from the main facta. If the main facta leave any doubt on how the parties join issue, that is the principal reason we provide for oral argument. That is the appropriate stage in the process where the panel hearing the appeal can canvass any uncertainty, or questions, they have regarding the parties’ positions.
[5] There can be no doubt that written submissions are very important in any appeal. In particular, they provide the necessary material for the panel to prepare for the issues raised and to understand the parties’ respective positions on those issues. However, there are limits on the usefulness of any element of advocacy, whether written or oral. More does not always mean better.
[6] In this case, for example, the application of s. 7(6) of the Arbitration Act can be responded to by the appellant in oral argument. It is not a situation where the panel will not be alert to the issue given its presence in the respondent’s factum. If the appellant has any jurisprudence upon which it wishes to rely to address this point, those authorities can be included in its book of authorities to be filed.
[7] I would also note, on this point, that the respondent raised the application of s. 7(6) of the Arbitration Act immediately upon receiving the appellant’s Notice of Appeal. Indeed, the respondent contemplated bringing a motion to quash the appeal on that basis, although he never did. In those circumstances, it is unclear to me why the appellant would not have addressed this issue in its factum.
[8] The other problem that routine filing of reply facta creates is revealed in this case. As I noted at the outset, counsel for the respondent has said that it would not oppose the appellant’s motion if two conditions were met. One is that each side should bear their own costs of the motion and the other is that the respondent should be permitted to file a sur-reply factum. It is this latter condition that creates the broader problem. The arguments that are marshalled in favour of permitting a reply factum can easily be adjusted to favour filing a sur-reply factum. At some point the back and forth must end. We have traditionally fixed that end point at one factum for each party. I do not see any compelling reason to depart from that traditional point on a regular basis.
[9] I do not suggest that there will never be a case where a reply factum would be justified. Those cases will be exceptional, however. I note, on this point, that r. 40(8) of this court’s Criminal Appeal Rules expressly provides that “in exceptional circumstances” the appellant can seek permission to file a reply factum. I would add that, while r. 61.03.1(11) of the Rules of Civil Procedure permits the filing of a reply factum on a motion for leave to appeal to this court, that is because there is no entitlement to an oral hearing on such motions.
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