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Appeals - Perfection

. Isaac v. Law Society of Ontario

In Isaac v. Law Society of Ontario (Div Court, 2022) the Divisional Court considered whether amending a Notice of Appeal re-started the timeline for perfection:
Filing an Amended Notice of Appeal does not Restart the Time for Perfecting an Appeal

[29] Justice Corbett made no error in finding that Mr. Isaac’s decision to file an amended notice of appeal did not re-start the time for perfecting his appeal.

[30] Mr. Isaac was entitled to file an amended notice of appeal. Rule 61.08 allows an appellant to amend the notice of appeal without leave before the appeal is perfected, to give notice of its intention to seek additional or different relief, raise different grounds or rely on different evidence than originally contemplated. However, filing an amended notice of appeal does not alter the time requirements for perfecting the appeal, which are set out in Rule 61.09(1):
61.09 (1) The appellant shall perfect the appeal by complying with subrules (2) and (3),

(a) where no transcript of evidence is required for the appeal, within thirty days after filing the notice of appeal; or

(b) where a transcript of evidence is required for the appeal, within 60 days after receiving notice that the evidence has been transcribed.
[31] There is no reference in Rule 61.09 to an amended notice of appeal. The time for perfecting an appeal starts to run when the original notice of appeal is filed. Unless the time is extended on a motion under Rule 3.02, the deadlines set out in Rule 61.09(1) continue to run from the filing of the original notice of appeal, not from the filing of an amended notice.

[32] In any event, even if Mr. Isaac’s amended notice of appeal did restart the filing deadline clock, he would have been required to perfect his appeal by the end of June 2021. When his appeal was dismissed, nearly eight months had passed since he filed the amended notice. Mr. Isaac has still not filed any materials for his appeal, and has failed to comply with the deadline he claims should have applied when he filed the amended notice.
. Prism Resources Inc. v. Detour Gold Corporation

In Prism Resources Inc. v. Detour Gold Corporation (Ont CA, 2021) a single judge of the Court of Appeal (Brown JA) lamented the leave requirement for filing a reply factum in civil appeals [the reasons are 20 paras long, all relevant].

. R. v. Orange

In R. v. Orange (Ont CA, 2021) the Court of Appeal considered an appeal based on an uncertified transcript:
[2] The appellant’s primary ground of appeal is that the transcript of the oral reasons for judgment delivered by the trial judge was not certified by the authorized court transcriptionist who prepared it. The transcript had been provided to the trial judge for editing before it was provided to the parties. The appellant suggests the transcriptionist refused to certify the transcript because the trial judge had made substantive changes to it. The appellant submits that since the transcript is not certified, there are no reasons to support the appellant’s convictions resulting in a miscarriage of justice and requiring a new trial. The appellant recognizes the irony of his argument as the trial judge provided detailed oral reasons. The uncertified transcript of her reasons is 199 pages in length.

[3] It is surprising that the transcriptionist did not certify the transcript. The court has compared the transcript to the audio recording of the trial judge’s reasons and confirmed that the transcript is accurate. The edits the trial judge made relate solely to matters of grammar and the correction of a few names where she had misspoken. The edits are well within the range permitted to be made by a trial judge: R. v. Wang, 2010 ONCA 435, 256 C.C.C. (3d) 225.

[4] We reject the appellant’s opportunistic submission the court cannot hear the appeal without a transcript certified by the transcriptionist. This court controls its own process. We direct that the appeal be determined based on the uncertified, but accurate, transcript of the trial judge’s reasons.
. Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin

In Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin (Div Ct, 2020) the Divisional Court criticized the filing of a 'reply factum' in an RTA appeal:
Preliminary Issue of the Appellant’s Reply Factum

[32] The appellant filed a reply factum that raised new issues not raised in its initial factum. There is no right to file a reply factum under the Rules of Civil Procedure, except in limited circumstances on a motion for leave to appeal an interlocutory order (see Rule 61.03.1(11)).

[33] The appellant states that Labrosse J., in a case management endorsement, set a date for the filing of reply materials. Even if that constituted authorization to file a reply factum, this was an improper reply factum.

[34] A reply factum should be filed only to address a new issue raised in the respondent’s factum that has not been addressed in the appellant’s factum. Leave may also be sought to file a reply factum if a matter could not have been dealt with in the initial factum – for example, because there has been a change in the law, such as the Supreme Court’s decision in Vavilov. Normally, reply factums are brief, and they should not repeat or amplify on what is in the initial factum.

[35] The argument in the appellant’s reply factum was 18 pages in length. The only new issue was the request to appoint Mr. Séguin as litigation guardian, which took less than a page.

[36] The rest of the factum was improper. It raised a new issue respecting s. 204(1) of the Act (an issue that the appellant had not raised before the Board), a new argument that the Board had pre-determined the outcome, and a new argument that the Board erred in failing to determine if there was a landlord and tenant relationship between JJ and the appellant. To its allegations of procedural unfairness, it added the failure to swear or affirm witnesses and to permit cross-examination. It also added new information about the facts (including alleged facts about the parents and the investigation, when the Board had ruled that such information was not relevant), as well as the statutory context for the care home, including a detailed discussion of the Developmental Services Act. Finally, it re-argued, at length, the points in the initial factum.

[37] This was an improper reply factum, and it should not have been filed. To the extent that it raised new issues, it was unfair to the respondent, who was not able to respond.



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