Court File and Parties

CITATION: Collins v. McCarthy, 2018 ONSC 3525

DIVISIONAL COURT FILE NO.: DC17-868

DATE: 20180605

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: R. Maxine Collins, Appellant

AND:

Lynn Anderson a.k.a. Mccarthy, Respondent

BEFORE: Thorburn, Varpio, and Myers JJ.

READ at Hamilton: June 5, 2018

Endorsement

Myers J.:

[1] The appellant moves under Rule 59.06 to correct the order of a panel of this court dated February 5, 2018 to reflect the wording that she proposed on the motion rather than wording reflected in the factum of the Landlord and Tenant Board. She also seeks an order under Rule 61.09 (2) which she says the previous panel failed to order despite her request being set out in her notice of motion.

[2] The appellant submits that the panel wrongly adopted the wording proposed by the tribunal for the phrase “if any” in s. 20 of the Statutory Powers Procedure Act, RSO 1990 c S.22 to hold that the statute only requires a tribunal to include transcripts in the record of proceeding if transcripts are already prepared. The appellant argues that the phrase “if any” as used in the statute applies to the phrase “oral evidence” in s. 20. Under her interpretation, if there is any oral evidence, the tribunal is required to create (i.e. pay for) the transcript and provide it to her.

[3] In Massiah v. Justices of the Peace Review Council, 2018 ONSC 2179 this court described the narrow scope of motions under Rule 50.06 as follows:

[10] Subrule 59.06(1) deals with correcting an order that contains an accidental error or needs correction on a point that was not adjudicated upon. It applies where the court order contains a typo or perhaps where the judge forgot to rule on a point that was raised at the hearing. It is not a basis to raise new grounds not raised before or to complain about former counsel’s handling of a proceeding.

[11] Subrule 59.06(2)(a) allows a party to challenge an order obtained by fraud or based on facts arising or discovered after the order was made. Rule 59.06 is not an opportunity to second guess counsel’s decisions as to which arguments to make at a hearing or to seek a new hearing to make the arguments that counsel previously chose not to make. That is what the applicant is seeking to do here.

[4] The fact that the panel agreed with a submission of the board is not a basis for an order under R. 59.06. The appellant argues that the panel failed to receive her Supplementary Factum in this issue. We have received and reviewed it as well as her factum on this motion.

[5] Section 20 of the SPPA provides that a tribunal “shall compile a record” which “shall include”:

(e) the transcript, if any, of the oral evidence given at the hearing;

[6] It is clear that the phrase “if any” modifies the word “transcript”. The point of the words “if any” is the very thing that the appellant argues against. She wants the board to be required to produce transcripts for her appeal. The phrase “if any” shows that the board only bears the obligation to include transcripts in its formal record if the transcripts already exist.

[7] Moreover, as the panel noted previously, s. 20 of the SPPA does not apply in this statutory appeal proceeding. The board is only obliged to prepare a record for use in court proceedings under the Judicial Review Procedure Act and not in an appeal from the tribunal. So even if s. 20 of the SPPA were to require a board to include transcripts in a formal record, in this appeal, there is no duty on the tribunal to file a formal record.

[8] Section 20 of the SPPA does not to compel the board to prepare transcripts for the appellant in this appeal despite her arguments to the contrary.

[9] This interpretation fits with the provisions of Rule 61 that place the burden on the appellant to include transcripts in her appeal record if she wishes to rely on transcripts in her appeal. While the material is less than perfectly clear, what appears to have happened is that the appellant perfected her appeal based on a certificate respecting evidence in which she indicated that she did not require transcripts for the purposes of the appeal. The appellant then moved in writing for an order requiring the board to produce the transcripts for her.

[10] The appeal came on for hearing on February 5, 2018. In an oral endorsement dated February 5, 2018, the panel dismissed the appellant’s motion and adjourned the appeal to a date to be set by the registrar during this week. The panel then gave the appellant thirty days in which to file proof that she has ordered the transcripts and re-perfect her appeal. She argues that it is absurd for her to have to perfect twice.

[11] Implicit in the panel’s ruling was that the appellant’s first perfection was set aside. The appellant is very clear in her factums that she wants to rely on the transcripts of the hearing to establish wrongdoing. She argues that the tapes have been falsified and edited. She seems to be straddling both arguments that she wants transcripts but she does not want to be ordered to pay for them, so she asks to be permitted to perfect or to argue her appeal without ordering transcripts.

[12] In our view, none of this is properly the subject of a motion under Rule 59.06. The court made its orders on the motion that was before it. The court heard the appellant and determined to exercise its discretion to require her to file proof of ordering transcripts. If she is of the view that the court made an error in doing so, her remedy is to seek leave to appeal rather than a motion under Rule 59.06.

[13] As to her request for documents, in the opening sentence of her endorsement, Horkins J. made reference to that aspect of the motion. While the court provided no explicit reason for dismissing that head of relief, it seems apparent that only the issue concerning payment for transcripts was pressed in the factums and orally. The appellant’s affidavit provides no evidence concerning any further need for documentary material as she has otherwise perfected her appeal previously.

[14] The motion is therefore dismissed. The respondent did not file responding materials so there are no costs.

[15] In our view, the appellant ought to be provided with one last opportunity to re-perfect the appeal so that all of the issues that she wants to raise, including her significant complaints about conduct of counsel and the board member during the hearing, can be fairly heard. The appellant is to serve and file the certificate under Rules 61.05 (5) and 61.10 (1) as previously ordered by this court by July 1, 2018. If the appellant files a certificate as required, the registrar shall then re-list the appeal for hearing at the next available sittings in Hamilton. If the appellant does not serve and file a certificate as required, or a certificate of stay from the Court of Appeal, in either case before July 1, 2018, the registrar is to issue an order dismissing the appeal for delay.

Myers J.

Thorburn J.

Varpio J.

Date: June 5, 2018