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Appeals - Perfection. Furney v. Golgoun [failure to perfect]
In Furney v. Golgoun (Div Court, 2024) the Ontario Divisional Court, here in a case conference, declines to dismiss an appeal for failure to perfect:[14] I am not prepared to dismiss the appeal for lack of perfection. It will proceed on December 20th subject to the hearing judge’s discretion of course. To give fair warning to the appellants however, I advise that if the trial judge’s reasons are not before the judge who hears the appeal, I would expect the appeal to be dismissed summarily. Moreover, the appellants proceed without transcripts of evidence at their own risk. . Robertson v. Ontario
In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered a joint submission by the parties on a class action certification appeal (with cross-appeal) - here where the parties agreed on the size of facta and compendium, and the time length of oral submissions:[6] I regard appellate advocacy as containing two components: (i) first, educating an appeal panel about a case; and then (ii) persuading the appeal panel to one’s client point of view on the various grounds of appeal.
[7] The main forensic device by which an advocate educates and persuades appeal judges about a case is the written factum, which provides an intelligible pathway through the associated appeal record. A factum affords counsel the opportunity to undertake an unhurried, comprehensive education of the judges in the salient facts of the case, the relevant principles of law (which may or may not be contested), the application of those principles to the facts and – most importantly – an assessment of whether the judge below erred in making factual findings, selecting legal principles or applying legal principles to the facts. As well, the factum contains a strong persuasive component, which builds on the educational foundation undertaken in its earlier parts.
[8] Oral argument proceeds in front of a panel who already have spent time educating themselves about the issues on the appeal and a party’s “pitch” on each issue through their study of the written factum and the associated appeal record. Based on that process of pre-hearing study, the judges on the panel will have formed views about the case, either identifying issues raised by the appeal materials on which they intend to seek clarification from counsel at the hearing or regarding the merits of the appeal as a whole. Given that pre-hearing study by a panel, the goal of effective oral advocacy is to engage the panel in rational persuasion, primarily by clarifying and satisfying any reservations that the judges may hold about aspects of the positions advanced by counsel’s client regarding the decision below.
[9] Since the advocate’s task of oral persuasion takes place after their earlier task of educating and attempting to persuade a panel through the written factum and appeal record, oral persuasion should consume less time than written education and persuasion. Accordingly, on a significant, law-intensive appeal such as this one, I usually see merit in allowing parties to file factums that exceed the standard 30-page limit on the expectation that permitting longer factums should result in the quid-pro-quo of a shorter oral hearing. . Bell v. Amini
In Bell v. Amini (Ont CA, 2023) the Court of Appeal comments on when a transcript is required, here for an appeal from a summary judgment ruling:[1] The appellant requested an order determining whether a transcript is required for this appeal or, if it is not, an extension of time to perfect this appeal to July 31, 2023. The respondent submitted no transcript is required and that no extension of time to perfect should be granted because of lack of merit in the appeal and the appellant’s past litigation conduct.
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[6] Rule 61.09 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires that an appellant perfect an appeal within 30 days after filing their notice of appeal "where no transcript of evidence" is required for the appeal.
[7] As the summary judgment motion was heard on a paper record and no witnesses were called to testify, the transcript of the summary judgment hearing is not evidence within the meaning of rule 61.09. Nor has the appellant identified an issue on appeal that would make the transcript necessary for the appeal for other reasons.
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[17] Sixth, given the common misconceptions on the part of self-represented litigants around rule 61.09, the fact that the appellant was entitled to appeal as of right, and the appellant's conduct in acting reasonably promptly, the merits of the proposed appeal are of limited significance in deciding whether to grant an extension. In my view, in all the circumstances, the interests of justice do not favour depriving the appellant of her right of appeal based on the alleged lack of merit absent a motion to quash, which would be heard by a panel of three judges. Moreover, should the appellant engage in improper conduct in this appeal, the respondent can invoke appropriate remedies. . 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. . 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.
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