2020 MBCA 100, 2020 MBCA 100

Citation: Sagkeeng v Government of Manitoba et al, Date: 20201013 2020 MBCA 100 Docket: AI20-30-09477 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : sagkeeng anicinabe aka fort ) N. K. Kempton and alexander band (“Sagkeeng”) ) C. B. Shefman ) for the Appellant (Applicant) Appellant ) ) S.

Bahir - and - ) for the Respondents ) the minister of sustainable ) Motion under Court of development, the Government of ) Appeal Rule 29(3) Manitoba and manitoba Hydro ) ) Decision pronounced: ( Respondents) Respondents ) October 13, 2020 LEMAISTRE JA Introduction [ 1 ] The applicant (Sagkeeng) seeks to increase the length of its factum from the usual upper limit of 30 pages to 47 pages.

Disposition Without Oral Hearing [ 2 ] As a result of the COVID-19 pandemic, the Chief Justice of Manitoba, the Chief Justice of the Court of Queen’s Bench and the Chief Judge of the Provincial Court have proactively taken measures to protect the health and safety of justice system participants, while maintaining access to justice (see, for example, “Notice to the Profession and Media re: COVID-19” (13 March 2020), online: Manitoba Courts < www.manitobacourts.mb.ca/news/covid-19-manitoba-court-schedule-changes > (date accessed 7 October 2020)).

One of the measures implemented by this Court was the amendment of the Manitoba, Court of Appeal Rules , Man Reg 555/88R (the Rules ) to permit the disposition of a matter without an oral hearing (see r 37.3). [ 3 ] Pursuant to r 37.3, since the parties agree, as do I, this motion can be determined on the basis of written materials filed without an oral hearing.

Background [ 4 ] Sagkeeng filed an application for judicial review in the Court of Queen’s Bench of the decision of the respondent, the Minister of Sustainable Development, granting a licence to the respondent, Manitoba Hydro, which would permit the construction of the Manitoba-Minnesota Transmission Project on Sagkeeng’s traditional and ancestral territory.

The respondent, the Government of Manitoba (Manitoba), brought a motion to strike or dismiss Sagkeeng’s application as premature on the basis that it had not exhausted the statutory appeal process pursuant to the applicable legislation. [ 5 ] The judge found that the application for judicial review was premature and, in any event, dismissed it on its merits. [ 6 ] Sagkeeng has filed an appeal of the judge’s decision dismissing the application as well as his determination that it was premature. Discussion [ 7 ] Rule 29(1) of the Rules governs the content of a factum.

It requires a concise overview of the appeal; a concise

summary of the material facts; a concise statement identifying the issues, the party’s position, the court’s jurisdiction and the applicable standard of review; and a concise statement of the argument:

Content of factum 29(1) A factum shall consist of the following four parts:

Part 1 - Introduction setting out a concise overview or explanation as to what is involved in the appeal.

Part 2 - Statement setting out a concise

summary of the facts material to the issues in the appeal.

Part 3 - List of Issues (

a) An appellant’s factum shall include a concise statement identifying the issues in the appeal and the appellant’s position on each issue. The appellant shall also state the basis for the court’s jurisdiction to determine the appeal and the applicable standard of review on each issue. (

b) A respondent’s factum shall include a concise statement indicating agreement or disagreement with the issues identified in the appellant’s factum and the respondent’s position on the issues in disagreement and identifying alternative issues. The respondent shall also state its position with respect to the basis for the court’s jurisdiction and the applicable standard of review on each issue.

Part 4 - Argument (

a) The factum shall include a concise statement of the argument, with appropriate headings, setting out the law and facts to be discussed, with particular reference to the page and line in the evidence or appeal book, and the tab number and page in the case book for the authorities relied on. (

b) Where a statute, regulation, rule, ordinance or by-law is cited or relied on in the argument, the portions that may be relevant to the decision of the appeal shall be included in the factum or case book, or three copies of those portions shall be deposited with the court. (

c) An estimate of the amount of time required for argument. [emphasis added] [ 8 ] Recently in OZ Merchandising Inc v Canadian Professional Soccer League Inc , 2020 ONCA 532 , Roberts JA reviewed the relevant principles applicable on a request to extend the length of a factum (see paras 4-7): • The 30-page limit is intended to accommodate “reasonably complex cases – simpler cases can often be dealt with adequately in much shorter factums” ( Chief Mountain v Canada (AG) , 2012 BCCA 69 at para 6 ; see also R v Van Wissen , 2016 MBCA 108 at para 5 ). • The rules governing the content of a factum stipulate the need for concise statements of the law and fact in order to focus counsel on the issues and ensure manageable, efficient and cost-effective appeals. • Leave to file a factum in excess of the 30-page limit is exceptional and granted sparingly in special circumstances.

While a party must be permitted to present its whole case effectively, this does not take away from the requirement of conciseness and the duty of efficiency to the court. • The overarching question is whether the extension is required in the interests of procedural fairness and justice “to advise the other side of the issues in dispute so that it can prepare properly for the appeal and to assist [the court] to deal effectively with the issues” ( R v Port Chevrolet Oldsmobile Ltd , 2008 BCCA 443 at para 5 ). • Important and complicated questions of fact or law, numerous grounds of appeal, protracted proceedings or a lengthy trial do not automatically justify an extension of the page limit. [ 9 ] In support of its motion to increase the length of its factum, Sagkeeng argues that two proceedings are being addressed

in its appeal: 1) the judge’s determination that the application for judicial review was premature; and 2) the judge’s dismissal of the application for judicial review. [ 10 ] Sagkeeng asserts that a factum of 47 pages is not prohibited by the Rules or the Manitoba, “ Court of Appeal Practice Guidelines ” (July 2003), online: (pdf): Manitoba Courts www.manitobacourts.mb.ca/site/assets/files/1139/practice_guidelines.pdf (date accessed 7 October 2020) (the Guidelines ) (see r 29(3) of the Rules ; and

section 3.5 of the Guidelines ). It submits that a 30-page factum with the required 14-point font would limit it to 33 per cent of the written argument it relied upon in the Court below.

Finally, Sagkeeng argues that the issues for determination in this appeal go to the heart of the Crown’s constitutional obligations to Indigenous peoples and that it would be unjust to limit its written submissions. [ 11 ] In support of its motion, Sagkeeng helpfully provided a draft factum of 48 pages. [ 12 ] I agree with Sagkeeng’s assertion that the issues in the appeal are important and that this Court will need to review the administrative decision as well as the judge’s reasons (see Larry Penner Enterprises Inc v The Deputy Minister of Finance (Manitoba) , 2018 MBCA 78 at para 10 ).

I also agree with Sagkeeng’s contention that they have not taken “a shotgun approach to appellate advocacy” ( R v Henderson (WE) , 2012 MBCA 93 at para 51 ; and Van Wissen at para 7 ; see also paras 8-10). [ 13 ] However, I have not been persuaded that this case is sufficiently complex or that the interests of justice warrant written argument in excess of 30 pages. [ 14 ] In its motion brief, Sagkeeng states that it intends to rely on its briefs filed in the Court of Queen’s Bench on the application for judicial review and the motion to strike or dismiss.

In my view, this Court does not require a factum longer than 30 pages in addition to the briefs to deal effectively with the issues. The 30-page limit requires appellate counsel to focus their arguments and write concisely. Moreover, I agree with the comments of Groberman JA in Chief Mountain that “neither the novelty of the case, nor the fact that it touches constitutional issues, nor the fact that it has some public importance will be factors which, in and of themselves, argue in favour of greater length” (at para 9).

Conclusion [ 15 ] In the result, the motion is dismissed with one set of costs to Manitoba in accordance with Tariff D of the Rules . JA