If I am to speak ten minutes, I need a week for preparation; if fifteen minutes, three days; if half an hour, two days; if an hour, I am ready now.
- Woodrow Wilson
Appeal Book and Compendium
Under the Rules of Civil Procedure, all appellants are required to file an appeal book and compendium to perfect the appeal. The respondent is also required to file a respondent’s compendium.
The contents of the appellant’s appeal book and compendium are set out under Rule 61.10(1) and include:
- A table of contents;
- A copy of the notice of appeal and any notice of cross-appeal;
- A copy of the order or decision appealed from as issued and entered;
- A copy of the reasons below;
- A copy of the pleadings or notice of application or other initiating document;
- A copy of any excerpts from a transcript of evidence that are referred to in the appellant’s factum;
- A copy of any exhibits that are referred to in the appellant’s factum;
- A copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum;
- A copy of the certificates or agreement respecting evidence;
- A copy of any order made in respect of the conduct of the appeal; and
- A certificate stating that the contents of the appeal book and compendium are complete and legible.
The respondent’s compendium is required, pursuant to Rule 61.12(7), to include:
- A table of contents;
- A copy of any excerpts from a transcript of evidence that are referred to in the respondent’s factum;
- A copy of any exhibits that are referred to in the respondent’s factum; and
- A copy of any other documents relevant to the hearing of the appeal that are referred to in the respondent’s factum.
As noted in the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, the compendiums “contain documents essential to the hearing of the appeal, including the excerpts from the transcript and any exhibits that the parties will refer to in oral argument”.[1]
Appeal books and compendiums are often quite lengthy and can be filed in multiple volumes.[2] That being said, it is important to ensure that the compendiums remain focused on the issues in the case. As noted in the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, “the appeal book and compendium is far less useful if unnecessary exhibits or materials are included in it.”[3]
Oral Hearing Compendium/Condensed Book
In addition to the compendiums required for perfecting the appeal, parties are also encouraged to file an Oral Hearing Compendium at the Court of Appeal for Ontario. At the Supreme Court of Canada, parties file a similar document known as the Condensed Book.
The Oral Hearing Compendium/Condensed Book is a much shorter document that contains only the key documents that will be referenced in oral argument. These documents may include:
- A brief outline of the party’s anticipated oral argument; and
- Excerpts from all documents and cases that the party intends to refer to in oral argument.
The Court of Appeal requires Oral Hearing Compendiums to be served and filed at least 5 business days before the hearing. The Supreme Court asks parties to file Condensed Books at least 2 business days before the hearing.
Justice Brown of the Court of Appeal recently provided useful guidance on role of the Oral Hearing Compendium and specifically, the outline of oral argument.[4] He noted that there are 3 main styles used in the outline of oral argument:
- A table of contents/bullet-form approach;
- A synopsis of points that the party intends to argue;
- An advocacy tool.
Justice Brown noted that the first two types of outlines are the most common. Their effectiveness is limited as they do not attempt to persuade the judge on the issue. Rather, they serve as a road-map that counsel intends to follow during oral argument. The third type is rarely seen, but the most effective. In Justice Brown’s words, the third type of outline is counsel’s attempt to draft “the key paragraphs they would like to see in the panel’s reasons on each major issue”.
Justice Brown also emphasizes that the timing of delivery of the oral compendium matters. It should be provided to the court with enough time for the judges to review and digest its contents. An oral compendium delivered on the eve of the hearing will not allow enough time for meaningful review.
An oral compendium helps counsel prepare and focus their argument on the key issues in dispute. It has the benefit of providing an organized and concise summary of key documents (typically in the order in which they will be referred to) that will allow the judges to follow along during the hearing.
The oral compendium is also a useful takeaway document that judges can rely upon when deliberating and preparing reasons. One of the key benefits of the oral compendium is its size. An oral compendium is a concise package of the most important documents and cases that will likely be relied upon when the judges sit down to write their decision.
While the choice of which extracts from the record and case law to include is important, it is the outline of oral argument that requires the most thought and preparation. The outline provides counsel with the opportunity to precisely and clearly explain to the panel their client’s position and how the case should be decided. As Justice Brown notes, the best outlines provide judges with the language and analytical framing necessary to decide the case.
The outline of argument can also help to structure the hearing. As Justice Brown notes, questions from the panel are common at the appellate level. Counsel should, of course, welcome these questions as they provide an opportunity to understand and address concerns from the bench. The outline of oral argument can help both judges and lawyers during the hearing. A well-structured outline can allow the panel to follow along during oral argument and when moving between points. For the lawyer, it can serve as a useful roadmap to ensure that all key points are covered during the hearing.
In short, an oral compendium can be a very helpful tool to the panel hearing the case. Preparing an oral compendium requires careful consideration, planning, and thought. It highlights Woodrow Wilson’s key point – the less time you have to argue, the more preparation that is required. As each level of appeal provides less opportunity for oral argument, the importance of careful and thoughtful preparation increases.
[1] Court of Appeal for Ontario, Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, amended February 26, 2024, at § 11.6.
[2] Court of Appeal for Ontario, General Practice Direction Regarding All Proceedings in the Court of Appeal, amended July 13, 2023, at § II. B. (f).
[3] Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, at § 11.6.
[4] Robertson v. Ontario, 2023 ONCA 454.
