1.9 Write your argument (factum)

What is a factum?

A factum is the argument that you will use in the presentation of your response to the appeal. It explains what your position is all about. See Rules 21 – 24.   The respondent’s factum is due 30 days after being served with the appellant’s factum.

Use Form 10 to prepare your factum.

Your factum must be bound in a green cover. It cannot be more than 30 pages long, unless a Court of Appeal judge has made an order allowing it to be longer.

The completion instructions on the back of Form 10 tell you exactly how your factum must appear. Be sure to follow those instructions carefully. For example, the pages in the factum (except the index), must be printed on the left, the pages numbered on the upper left corner of the page, in 12 point Arial type, and so on.

What does a factum contain?

Your factum must contain:

  1. An index.
  2. A chronology of the relevant dates in the litigation.
  3. An opening statement, which is a concise (one page) statement identifying yourself as the respondent, the court or tribunal appealed from, and the result of your case in the previous proceedings. Your opening statement must set out the essential points of your response to the appeal; that is, the main reasons why the appeal should not succeed.
  4. Part 1:   A statement of facts. Set out your position with respect to the appellant’s statement of facts in his or her factum, together with a concise statement of any other facts that were before the court below that you consider relevant. The source relied on for a statement of fact (e.g., testimony; an exhibit; reasons for judgment) must be identified by referring to the volume and page number where it is found in the appeal record, appeal book, or transcript.

It is not useful to replicate the statement of facts found in the appellant’s factum and indicate whether you agree with each paragraph. Instead, you may wish to state that you agree with the statement of facts in the appellant’s factum, except for a list of paragraphs, explaining how you disagree with each.

  1. Part 2:   Issues on Appeal. This part outlines your position on the issues raised by the appellant’s factum and other points that you want to put in issue.  
  2. Part 3:   Your legal argument. This is a concise outline of the facts or points of law to be discussed. Indicate the volume and page number of the appeal record, appeal book, or transcript that you are referring to. You must provide legal authorities in support of each point (e.g. legislation or a case similar to yours). If you are including a part of the statute that you are referencing with your factum, it must be included as an appendix to the factum or in a separate volume with the same cover as your factum.
  3. Part 4:   Nature of the order sought. (A concise statement of the order that you wish to obtain on appeal, including any special order respecting costs.)
  4. A list of authorities. (This section follows the appendix. List your legal authorities [case law or legislation] in alphabetical order, referencing the page or paragraph in the factum to which it applies.)

Your factum must not:

  • contain irrelevant material;
  • reproduce material contained in your appeal record or transcript; or
  • exceed 30 pages (unless a judge has ordered otherwise).

Within 30 days of being served with the appellant’s factum, you must:

  • file at least 6 copies of the factum in the registry – 4 for use by the court, one copy for your own use, plus enough copies to serve on every appellant and respondent; and
  • serve a filed copy of the factum on each appellant (and other respondents).

Your factum is normally filed together with your transcript extract book. This is discussed on the next page.

You can see an example of a factum here.