Respondent's Compendium in Divisional Court Appeals: 3 Questions Before You Start Drafting

You are looking at the Divisional Court appeal calendar and the respondent's factum deadline is closer than you would like. The appellant has filed a compendium. Now someone on your file is asking whether you need to file a respondent's compendium in Divisional Court too. It is a fair question, and the answer is not automatic. Getting it wrong in either direction costs you: file an unnecessary compendium and you've spent drafting hours you didn't need to spend; skip it when the record actually needed curation and you've handed the panel a harder path to your best arguments.

Ontario's guide to Divisional Court appeal procedures is deliberately permissive on this point. Respondents "in some cases" will need to serve and file a respondent's compendium. That phrase is doing a lot of work. It tells you the obligation is conditional, not universal, but it doesn't tell you which cases qualify. This article gives you a practical framework for making that call quickly, so you can protect your time for the work that actually requires your judgment.

What a Respondent's Compendium Actually Is

Before the three questions, a quick baseline. A compendium is not a separate argument. It is a curated package of the materials the panel will actually need to follow your submissions: relevant portions of the record, key excerpts from transcripts, the legislation or regulations in play, and any cases you plan to cite. The appellant's compendium is organized around the appellant's theory of the appeal. If your response tracks a different path through the record, or relies on materials the appellant ignored, your own compendium lets the panel follow you without digging through the full appeal record mid-hearing.

The format requirements for a respondent's compendium in Divisional Court mirror those for the appellant: tabbed, paginated, and filed with your respondent's factum. The content, though, is entirely strategic. That is why the decision about whether to prepare one is worth thinking through before you assign the drafting work.

Question 1: Does the Appellant's Compendium Tell Your Story, or Only Theirs?

This is the threshold question. Pull out the appellant's compendium and read it as if you were a judge seeing this case for the first time. Does it include all the record excerpts that support your position? Does it reproduce the findings of fact you're relying on? Does it include the statutory provisions you need, cited in full context?

If the honest answer is yes, you may not need a respondent's compendium at all. Respondents are entitled to rely on the appellant's compendium where it accurately captures the materials in dispute. A well-organized appellant's compendium that happens to contain your key evidence is a gift. Use it, cite it in your factum, and spend your hours elsewhere.

If the appellant's compendium is selective in a way that distorts the record, that is a different situation. Appellants curate their compendia to advance their theory of the case. They are not obligated to include materials that undercut their position. If the lower court's findings turned on evidence the appellant has quietly excluded, if the transcript excerpt in the compendium is missing the two lines that change its meaning, or if the statutory scheme requires reading two provisions together and only one appears, you have a real problem that a respondent's compendium can fix.

The test is simple: can a panel member follow your factum using only the materials already in the record and the appellant's compendium, without getting lost or having to dig? If not, you need your own compendium.

Question 2: Is the Appeal Record Clean, or Is It a Maze?

Divisional Court appeals often arrive with unwieldy records. Judicial review applications, in particular, can generate administrative tribunal records that run to hundreds of pages. If the appeal record is long and the appellant's compendium pulls from it selectively, a panel member following your submissions needs a navigational tool. That tool is your compendium.

Think about the specific extracts your factum will cite. If every citation is to a tab in the appellant's compendium, you're in good shape. If your factum will repeatedly cite volume three of a seven-volume appeal record and the appellant's compendium never touches volume three, you're asking the panel to do unnecessary work. Judges are busy. Panels that can follow your argument without interruption are more likely to engage with it fully.

There is also a credibility dimension to this. A respondent's compendium that includes materials the appellant omitted, presented neutrally and in full context, sends a quiet signal that you're working with the whole record rather than hiding from parts of it. That impression matters.

Short records with a focused dispute are the cases where you can most confidently skip the respondent's compendium. If the appeal turns on a question of law and the relevant materials are all in the appellant's compendium, the calculus points toward not duplicating the work. The longer and messier the record, the stronger the argument for preparing your own curated set of materials.

Question 3: Do You Have Cases or Legislation the Appellant Did Not Include?

A compendium in Divisional Court appeals is also where you put your authorities: the cases and statutory provisions the panel will need during your oral argument. The appellant's compendium will include the appellant's authorities. If your factum relies on different jurisprudence, or if you need the panel to read a statutory provision that the appellant's factum skipped over, those materials need to be somewhere accessible during the hearing.

This is the question that most often tips the balance toward filing a respondent's compendium even when the record question is borderline. If your response introduces new authorities, or if you're relying on a constitutional provision, a regulation, or a policy document not included in the appellant's materials, you need to give the panel access to those materials in organized form.

Check your draft respondent's factum. Count how many authorities you cite that are absent from the appellant's compendium. If the number is zero or one, and those authorities are short and easy to locate, you might manage with a supplementary list of authorities rather than a full compendium. If you're relying on four or five cases the appellant did not cite, plus a regulation the appellant did not reproduce, a respondent's compendium is the cleaner approach and it is worth preparing properly.

The Practical Checklist Before You Decide

Running through these questions does not need to take long. Here is a fast way to work through the decision on a real file.

• Read the appellant's compendium cover to cover and mark every place your factum will need to cite a record excerpt not included there.
• List every case and statutory provision your factum will rely on. Cross-reference against the appellant's compendium.
• Ask yourself whether a judge following your factum with only the appellant's compendium and the full appeal record could easily find everything you're citing. If the answer is no for more than two or three references, a respondent's compendium is worth the investment.
• If the record is genuinely short and the dispute is narrow, be honest about whether the compendium adds value or just adds pages.

The goal is not to file a respondent's compendium because it looks thorough. The goal is to file one when it materially improves the panel's ability to follow your argument. That is the only question that matters.

When You Decide to Proceed: What Goes In

If the analysis points toward filing a respondent's compendium, the content should be disciplined. Include the excerpts from the appeal record that your factum relies on and that are absent from the appellant's compendium. Include the full text of any statutory provisions, regulations, or policies you need the panel to read. Include your authorities, properly formatted.

Do not include materials just to make the compendium look substantial. Do not duplicate materials that are already in the appellant's compendium unless there is a specific reason, such as context that was cut off or an excerpt that needs to be read alongside something else. A focused respondent's compendium is more useful than a bloated one, and it reflects better on your preparation.

The formatting requirements under the Divisional Court's practice direction are not optional. Tabs, pagination, and a table of contents are standard. If you're delegating the drafting of the compendium itself, make sure your drafter has the full appeal record, the list of excerpts you need, and your list of authorities. The assembly work is straightforward but detail-intensive, and errors in pagination or missing tabs create problems at the hearing.

Where Drafting Support Makes Sense

The decision about whether to file a respondent's compendium is a judgment call that belongs to you. Once you've made the call, though, the actual assembly work is exactly the kind of task that doesn't need your time. Pulling excerpts, paginating, formatting, and producing a clean tabbed document is skilled drafting work, and it is time-consuming. It is also time that you're probably billing at a rate that makes it expensive relative to the task.

This is the kind of Ontario appellate drafting work We Draft It handles. Ontario lawyers and paralegals submit the job, get a quoted fee per job, and receive a finished document ready for their review. Our vetted drafters are experienced with Ontario appellate materials, including respondent's compendia, respondent's facta, and the full range of Divisional Court appeal documents. You stay focused on the argument. We handle the assembly.

If you're carrying a Divisional Court respondent's file right now and the compendium question is sitting on your list, the faster path is to work through the three questions above, make the call, and then start a draft with someone who knows the format and can turn it around on your timeline. You can also find out more about how We Draft It works before you submit.

The record is yours to protect. The drafting doesn't have to be yours to do.

This article is general information for legal professionals and is not legal advice. We Draft It provides drafting support to licensed Ontario lawyers and paralegals, who remain responsible for their own files, advice, and client relationships. For advice on a specific matter, consult a licensed practitioner.