Segura Mosquera v. Ottawa Catholic School Board, 2018 ONSC 2397
CITATION: Segura Mosquera v. Ottawa Catholic School Board, 2018 ONSC 2397
COURT FILE NO.: DC-17-2311
DATE: 2018/04/13
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
RE: Gladys Milena Segura Mosquera, Appellant (Plaintiff)
AND:
Ottawa Catholic School Board, Respondent (Defendant)
AND:
The Attorney General of Ontario, Intervenor
BEFORE: Mr. Justice Calum MacLeod
APPEARANCES:
Gladys Milena Segura Mosquera, in person
Adam Gamwell, for OCSB
Audra Ranalli, for Attorney General of Ontario
Laura Hunt, for OCDSB
Mathieu Charron, for City of Ottawa
HEARD: March 20, 2018
REASONS FOR DECISION
[1] This was a motion brought by the appellant. She is appealing a decision of a Deputy Judge who dismissed her Small Claims Court action against the Ottawa Catholic School Board (OCSB). She believes that the requirement to order and pay for a transcript in order to perfect her appeal is unfair because it imposes a financial barrier to access to justice.
[2] I understand the appellant’s point. There is a process by which qualifying low income residents of Ontario can request exemption from paying court fees to the government. That process does not relieve the party of the obligation to pay expenses other than fees. Even with a fee waiver, litigants will have to incur expenses associated with their litigation. There may be significant costs involved in duplicating and preparing materials. In the case of an appeal, one of the most significant expenditures will be the cost of obtaining a transcript. That cost is regulated but it is paid to a certified court reporter or transcriptionist and not to the government. It is not covered by a fee waiver. The audio recording of the trial on the other hand is available for a nominal fee.
[3] Whether reliance on transcripts remains appropriate and necessary in a digital age is an interesting question. The appellant would not be alone in questioning the current model for transcript production or the fees attached to that exercise. It is not outside the bounds of possibility that speech to text computer software or some other technological solution might in future render the current model obsolete. For the moment, however, transcripts are the method of generating an official record of the proceedings and the transcript must be prepared and certified by someone qualified to do so. There are sound policy reasons for this requirement which were canvassed in a decision of this court released last year.[^1]
[4] This does not mean that the requirement for a transcript is necessary in every case. If the appeal is based only on a question of law or a specific ruling by the trial judge, it may not be necessary to put all of the evidence heard at trial before the appellate court. Rule 61.05 provides a method for proposing or agreeing to limit the evidence. In that case only a portion of the transcript may be required. Rule 61.09 (4) provides a mechanism to obtain relief from the requirements of the rule if it is necessary to grant such relief in the interests of justice.
[5] Unfortunately, rather than simply seeking relief from the requirement or seeking leave to produce only part of the transcript, or seeking leave to use part of the audio in lieu of a transcript, the appellant launched an all-out assault on the validity of the requirement itself. She sought to have it declared unconstitutional and she served a notice of constitutional question. At the same time she sought to have other regulations and requirements held to be unconstitutional as well. Those other matters relate to other grievances and other legal proceedings and not to this appeal. Nevertheless, counsel for the Attorney General of Ontario and for the City and the OCDSB who are not parties to the appeal were present to speak to the matter.
[6] I decline to rule on the majority of the constitutional issues as they are not properly part of this motion. I also decline to strike the requirement to file a transcript on constitutional grounds. Even if the requirement to file a transcript in a civil appeal could be a barrier to justice rising to the level of a constitutional right, it is not necessary to consider that question because there are provisions in the rule to obtain relief.
[7] I am not granting relief because the appellant has not put the evidence before me by which I can determine that it is in the interests of justice to dispense with the filing of a transcript.
[8] To obtain relief from the requirements of the appeal rules, the appellant would have to demonstrate at least the following factors:
a. The appeal has apparent merit and an injustice will be done if it cannot proceed;
b. That she has exhausted all other methods of narrowing the scope of the evidence and reducing the cost;
c. The actual cost of complying with the rule;
d. That she is impecunious and cannot afford to perfect the appeal; and
e. That the appeal can be appropriately argued without a transcript and doing so would neither place an unreasonable burden on the court nor prejudice the respondent.
[9] The evidence before the court is inadequate to support this relief. Firstly, the small claims court action was an action for damages including defamation. The appellant’s grievance arose from the fact that she was banned from attending at the school and was issued a trespass notice. It is worth noting that this notice and subsequent events has given rise to a series of actions and an application for judicial review. I am concerned only with the appeal from small claims court. In that court, the deputy judge concluded that this particular claim for damages could not succeed. The evidence before this court does not persuade me that there is any merit to the appeal.
[10] Even if the appellant could demonstrate an appeal with apparent merit, she has not provided the evidence to assess the other factors I have identified above. While she advised me she had qualified for a fee waiver, she did not demonstrate impecuniosity by evidence that she could not raise the money for the portion of the transcript she might require. By analogy with cases on security for costs, it would require robust financial evidence and evidence that there is no one else who might be in a position to assist her.
[11] In conclusion, the motion is dismissed.
[12] The responding parties are entitled to costs but under the circumstances, the costs award should be modest. I fix the costs of the OCSB and the Attorney General at $400.00 each. While I appreciate the courtesy of counsel for the City and the OCDSB appearing, they are not in fact parties to the appeal or the motion and I am not awarding them costs.
Mr. Justice Calum MacLeod
Date: April 13, 2018
CITATION: Segura Mosquera v. Ottawa Catholic School Board, 2018 ONSC 2397
COURT FILE NO.: DC-17-2311
DATE: 2018/04/13
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Gladys Milena Segura Mosquera, Appellant (Plaintiff)
AND:
Ottawa Catholic School Board, Respondent (Defendant)
AND:
The Attorney General of Ontario, Intervenor
BEFORE: Mr. Justice Calum MacLeod
APPEARANCES:
Gladys Milena Segura Mosquera, in person
Adam Gamwell for OCSB
Audra Ranalli for Attorney General of Ontario
Laura Hunt for OCDSB
Mathieu Charron for City of Ottawa
Reasons for decision
Mr. Justice Calum MacLeod
Released: April 13, 2018
[^1]: See K.M. v. Marson, 2017 ONSC 2972, (2017) 138 OR (3d) 709 (SCJ)