Advocacy-Matters-Summer-2022

Tip 1: Always file an Incomprehensible Unlinked Factum
Justice Catzman recommends an incomprehensible
factum to “let the court know right off
the bat that you have a rotten case by filing a
lengthy factum filled with gobs of conflicting evidence
and lengthy quotes from irrelevant cases.”
This holds true, but with advances of technology
there are so many more ways to create
an unfriendly factum.
◊ Only refer to cases that pre-date the Internet.
The older authorities are always the best
and you can keep filing old-fashioned books
of authorities. Be sure to include all 200 pages
of the Supreme Court of Canada decisions
from the 1980s and a few lengthy cases that
did not make it into your factum. Of course,
for a truly incomprehensible argument, it
would be best to ignore the requirement to
highlight the relevant portions of the cases
that you cite, 1 but if you want to be helpful
to the Court, you can randomly highlight key
and not-so-key passages. While there was a
short period of time when cases were highlighted
electronically and sent to coloured
printers (or printed to PDF), keep it classic by
having a team of students and junior associates
highlight everything by hand. 2
◊ Do not use hyperlinks to cases that are readily
available on the Internet. 3 If the case is on
the Internet, I am sure that judges would prefer
to search it up themselves. By doing their
own research, judges can see that you are citing
the trial decision without referring to the
subsequent treatment by appellate courts
or failing to cite a relevant case. 4 You can improve
the judge’s chances of finding the case
by leaving out the neutral citations 5 and only
using citations to paper-based reports or
electronic services that are only available by
subscription. The same applies to all references
to statutes – either leave it out entirely
(as Justice Catzman recommends) or refer to
the statute by its most popular acronym so
that the judge can find it on Google. 6
◊ Deep links? Ignore them. The technology
available to link directly to the paragraph
you are citing should not be used if you
want a frustrated judge and ineffective factum.
It is much better to have the judge read the
entire case to find the most important
sentence. It takes far less time to add deep
links 7 than it does to highlight by hand, and
efficiencies are not good for business.
◊ Finally, do not make use of any of the tools
available in CaseLines or your PDF software
to hyperlink your Table of Contents to the
appropriate sections of your factum or to add
links to the evidence. If you want an ineffective
factum, do not follow the advice of the
Honorable Justice Dunphy in Basaraba v.
Bridal Image Inc., 2021 ONSC 8038 at paras 26-
27 (CanLII).
Notes
1. See for example, Federal Courts Rules, SOR/98-106, Rule
70(2.1) requiring that “relevant extracts [be] clearly marked.
2. This is an important right of passage that has been lost in this
modern era. Nothing says teamwork like an assembly line
of young lawyers with bright yellow (and the odd orange)
marker in hand.
3. To ignore this advice, and use hyperlinks, see this page
from Microsoft about how to add hyperlinks to a word
document:https://support.microsoft.com/en-us/office/
create-or-edit-a-hyperlink-5d8c0804-f998-4143-86b1-
1199735e07bf#:~:text=Select%20the%20text%20or%20
picture,link%20in%20the%20Address%20box
4. See: Blake v. Blake, 2019 ONSC 4062, varied by 2021 ONSC
7189 (Div. Ct.) (CanLII)
5. For example, do not use RJR-MacDonald Inc. v. Canada
(Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR
311 that cites and links to both CanLII and Supreme Court
Judgments. For inconvenience, use RJR-MacDonald Inc. v.
Canada (Attorney General),111 DRL (4th) 385 — [1994] ACS
no 17 — [1994] SCJ No 17 (QL) — [1994] CarswellQue 120 —
EYB 1994-28671 — JE 94-423 — 54 CPR (3d) 114 — 60 QAC
241 — AZ-94111025 — 46 ACWS (3d) 40 — 111 DLR (4th)
385 — 164 NR 1
6. To ignore this advice, see the helpful guide published by
the SCC here: https://www.scc-csc.ca/parties/linking-guideliens-guide-eng.pdf
7. Deep links are not some dirty secret. They are a hyperlink
directly to a specific numbered paragraph within a
CanLII decision, simply by adding #par followed by the
paragraph’s number, after the basic URL. For instance, a
hyperlink to paragraph 69 of the Oakes Supreme Court of
Canada decision should be formatted as follows: http://www.
canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.
html#par69. See: https://blog.canlii.org/2011/02/04/224/
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