1.9 Write your argument (factum)
What is a factum?
A factum is the written argument that you will use in the presentation of your response to the appeal. It explains what your position is all about. The respondent’s factum is due not more than 30 days after you are served with the appellant’s factum.
You must prepare your factum by following the paper or e-filing completion instructions for factums. There are also Word templates which incorporate all the formatting requirements set out in the instructions (e.g. page numbering requirements, font type, size, etc.). Be sure to follow the completion instructions and use the Word templates provided.
What does a factum contain?
Your factum must contain:
- A table of contents.
- A chronology of the relevant dates in the litigation.
- 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.
- Part 1: A statement of facts. Set out your position with respect to the appellant’s statement of facts in their 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.
- 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.
- 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 cases like yours). If you are including a part of the statute that you are referencing with your factum, you must include the part of the statute as an appendix to the factum or in a separate volume with the same cover as your factum.
- 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.)
- 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:
- Reproduce material contained in your appeal record or transcript
- Exceed 30 pages (unless a judge has ordered otherwise)
Not more than 30 days after you are served with the appellant’s factum, you must:
- File the factum. If you file in paper you will need at least 6 copies – 4 for use by the court, one copy for your own use, plus enough copies to serve on every appellant and other respondent(s); and
- Serve a filed copy of the factum on each appellant (and other respondents).
You normally file your factum together with your appeal book (if you are filing a separate one from the appellant).