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Appeal - Transcript. Furney v. Golgoun
In Furney v. Golgoun (Div Court, 2024) the Ontario Divisional Court considered issues around who has a duty to order transcripts, for the purpose of perfecting an appeal:[2] The judge’s written endorsement provides no further information except that the conclusion was reached, “[f]or oral reasons provided”.
[3] The appeal is scheduled to be heard on December 20, 2024. The appellants have not had the judge’s reason transcribed. Ms. Furney says that there is no reason to provide a transcript of evidence also because the issue is one of law. But without the judge’s reasons, this court cannot know what the issues were before the trial judge and whether he resolved the issues – law or otherwise - correctly.
[4] Moreover, Rule 61.05 (5) of the Rules of Civil Procedure, RO 1990, Reg 194, requires the appellant to order a transcript of all oral evidence that the parties have not agreed to omit unless an order for relief is obtained under Rule 61.09 (4).
[5] The parties have not agreed to omit any evidence. A party can be penalized in costs for requiring evidence to be transcribed unnecessarily under Rule 61.05 (8).
[6] Ms. Furney submits that the respondent cannot require her to order transcripts or to pay for them. She relies on Rule 61.09 (2) that allows the Divisional Court to order material in the record below be sent to the Registrar of the Divisional Court if it is necessary for the appeal. That rule cannot apply however as the transcripts are not in the court file below. They have yet to be prepared. Moreover, given the specificity of the rules dealing with transcripts in Rule 61.05, this rule cannot be read to undermine the mandatory requirement of Rule 61.05 (5).
[7] Ms. Furney also relies on Rule 61.09 (4) that is an exception built into Rule 61.05 (5) itself. Rule 61.09 (4) allows the court to give “special directions and vary the rules governing” transcripts and other filings, where, “it is necessary to do so in the interest of justice.” I have carefully reviewed the memoranda delivered by Ms. Furney early this morning and the enclosures. While I understand that she asserts that the debt in this case is integral to her overall claim to have been defrauded by organized crime in a far greater amount, that does not address the necessity of transcripts for this appeal. In fact, if anything, it may make it more important for the judge who hears the appeal to see the evidence and read the submissions that were made below to understand the broader context.
[8] In any event, the judge’s reasons for decision are needed for the appeal to be heard regardless of any other issues.
[9] Based on the Rules therefore, the appellants do indeed bear the responsibility to order, pay for, and file in this court the transcripts of all oral evidence taken at the trial. The parties have not agreed to omit any evidence. If the respondent has unnecessarily sought too much, the appellants may seek costs or special directions once their judge’s reasons are transcribed and the appellants can articulate the issue(s) of law that they say do not need any evidence to understand. Should a judge agree with them, then the hearing date can be adjusted accordingly.
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[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. . Allen v. Kumar
In Allen v. Kumar (Ont CA, 2024) the Court of Appeal considered an appellate motion, here respecting the providing by the court of a transcript - or a recording thereof - wrt submissions and argument before a CA judge (not a transcript of evidence, which is typical):[1] On July 18, 2022, Associate Justice Robinson struck out Mr. Kumar’s statement of defence due to his failure to pay a costs order and his pattern of non-compliance with court orders and procedural obligations. On November 2, 2023, the Divisional Court dismissed Mr. Kumar’s appeal. On January 2, 2024, Mr. Kumar perfected his motion for leave to appeal the Divisional Court’s decision to this court. On March 13, 2024, Coroza J.A., in chambers, ordered that by March 28, 2024, Mr. Kumar post $5,000 as security for the respondents’ costs in relation to his motion for leave to appeal.
[2] Mr. Kumar did not post the ordered security for costs. He commenced a review motion to a panel of this court of Coroza J.A.’s order, which has not yet been perfected.
[3] On the motion before me, Mr. Kumar seeks permission to have transcribed the digital recording of the February 23, 2024 security for costs hearing before Coroza J.A. He argues that the transcript is necessary for his submissions on the review motion. Specifically, he submits that Coroza J.A. erred by misapprehending or ignoring certain of his submissions and that he requires the transcript of the hearing to support his position on the review motion. Mr. Kumar agreed that he would not need a transcription if he were provided with a copy of the digital recording of the hearing.
[4] As the transcript sought is not a transcript of oral evidence, Mr. Kumar was required to bring a motion for permission to obtain a transcription of the hearing before Coroza J.A. or to obtain a copy of the digital recording for use on the review motion. Accordingly, the overarching consideration on this motion is whether the justice of the case warrants the exercise of the court’s discretion to grant the relief sought. Among other factors, I must balance the prejudice to the respondents by any further delay with Mr. Kumar’s ability, as a self-represented party, to fully argue his review motion. Although it appears to me that the present record is sufficient to allow Mr. Kumar to make most of his arguments, and he did not provide supporting affidavit evidence for his contention that the recording will show arguments that were misunderstood or ignored, I am prepared to give Mr. Kumar the benefit of the doubt that the digital recording may be of assistance to him for the purpose of making his arguments on the review motion.
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[6] In these circumstances, I find it is just to make the following order:1. In order to expedite this matter, at no cost, without further application but subject to providing the undertaking described below, the parties shall be provided with a copy of the digital recording of the hearing before Coroza J.A. on February 23, 2024, and three copies shall be provided to the panel hearing the review motion. The court office shall advise the parties (and me) when the recording is available. The parties or their counsel shall sign and give to the court office the undertaking attached to this endorsement as a condition of being provided with a copy of the digital recording.
2. The hearing of the review motion shall be expedited. This is essential in the interests of fairness.
3. Within twelve days of being advised that the recording is available, Mr. Kumar shall serve and file his motion record and factum for the review motion. Mr. Kumar has had over a month to start to prepare his materials. Mr. Kumar did not need the digital recording to start preparing his materials.
4. The respondents shall serve and file their responding materials within twelve days of receipt of Mr. Kumar’s materials.
5. Any reference to any part of the digital recording in the parties’ facta shall be made to the specific time notation on the recording, as, for example, to “10:15:26 a.m.”.
6. In order to expedite the review motion, it shall be heard in writing by a panel on the earliest possible date during the month of May following the filing of the parties’ materials. . 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.
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