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Courts - Court of Appeal (CA). Strutzenberger v. Strutzenberger [transcripts/CA not 'court of record']
In Strutzenberger v. Strutzenberger (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion "to have his hearing before Paciocco J.A. transcribed", this in aid of a panel appellate motion for "review of the order ... which dismissed his motion for an extension of time" to commence an appeal.
The court cites portions on the Civil Appeal Practice Direction regarding the taking of transcripts:[4] Section 17 of the court’s Practice Direction Concerning Civil Appeals states:1. The Court of Appeal is not a “court of record”. Its oral hearings are not monitored or transcribed as a matter of routine. However, the Court of Appeal records all hearings that are held in open court through the use of digital audio recording. Unless a judge orders otherwise, a copy of a digital audio recording is available upon request, provided that the proceedings are not subject to a statutory publication ban or other court order that prevents the release of the digital audio recording.
2. Requests for access to digital audio recordings should be made in the Registrar’s Office and are subject to payment of the prescribed fee, unless a fee waiver certificate is produced. Such recordings are for personal use, and will not be released unless the person requesting the recording signs an undertaking agreeing to respect the limits on the permitted uses of the recording.
3. A person seeking to have a transcript of a hearing made must bring a motion for permission to do so before a single judge. Once the order is obtained, the person may have the recording transcribed at the person’s own expense.
4. The publication, broadcasting, reproduction or other dissemination of an audio recording of a court hearing is prohibited unless expressly authorized by a court order. [Emphasis added.] [5] In my view the Practice Direction establishes a presumption that preparation of a transcript of a hearing in this court will not usually be permitted. There is limited jurisprudence on the criteria a single judge should consider in granting permission to have a transcript. Mr. Strutzenberger does not allege that there were any irregularities in the hearing. He is able to function and is articulate. He has provided no argument as to why it would be in the interest of justice to make the order he seeks. I am not persuaded that the transcript would assist Mr. Strutzenberger or the panel in hearing his motion to review the order of Paciocco J.A. . Ramos (Re)
In Ramos (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed a defendant's NCR appeal, here brought against a decision continuing detention on the grounds that it was "inconsistent with the requirement under s. 672.54 ['Dispositions by a Court or Review Board - Terms of Dispositions'] of the Criminal Code, R.S.C. 1985, c. C-46, to impose the least onerous and least restrictive disposition that is compatible with public safety."
Here the court notes an instance of a per incuriam ['through lack of care'] ruling, as a stare decisis exception:[38] Thus, to the extent that it suggests otherwise, Negash was rendered inadvertently or per incuriam. It overlooked both Young and Conception. Had those precedents been considered, the outcome would have differed: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 77.
[39] Because per incuriam decisions are an exception to the five-judge rule, a three-judge panel may overturn Negash on this point: McArdle v. Bugler, 2007 ONCA 659, 87 O.R. (3d) 433, at para. 27. Respecting Young and Conception requires doing so here: Sullivan, at para. 75; R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at paras. 205, 267, per Côté, Brown, and Rowe JJ. (concurring). . 9383859 Canada Ltd. v. The Court of Appeal for Ontario
In 9383859 Canada Ltd. v. The Court of Appeal for Ontario (Div Court, 2023) the Divisional Court considers a JR brought against the Court of Appeal itself:[10] First, decisions of the Court of Appeal are not subject to judicial review by the Divisional Court. The Court of Appeal is a “superior court of record”: Courts of Justice Act, RSO 1990, c. C.43, ss. 2(1). Any review of its conduct must be by way of appeal or a motion to reconsider, if available. The Divisional Court, over which the Court of Appeal exercises appellate jurisdiction, has no jurisdiction to judicially review decisions of a “superior court of record”, but only those of an “inferior court”: Judicial Review Procedure Act, RSO 1990, c. J.1, s. 1.
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