Segura Mosquera v. Ottawa Catholic School Board
CITATION: Segura Mosquera v. Ottawa Catholic School Board, 2018 ONSC 5924
COURT FILE NO.: DC-17-2311
DATE: 2018/10/04
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
RE: SEGURA MOSQUERA, GLADYS MILENA, Plaintiff (Appellant)
AND:
OTTAWA CATHOLIC SCHOOL BOARD, Defendant (Respondent)
BEFORE: Mr. Justice Calum MacLeod
APPEARANCES:
Gladys Milena Segura Mosquera, Appellant, in person
Joël Rocque for Respondent, OCSB
HEARD: September 28, 2018
REASONS FOR DECISION
[1] The appellant seeks an order declaring her appeal perfected and directing the Registrar to list it for hearing. She also seeks an order directing the Registrar to issue a Certificate of Stay in connection with the costs awarded against her as part of the judgment under appeal.
[2] For the reasons that follow, the appellant is not entitled to the relief she is seeking. The grounds for appeal she is advancing require a transcript of the trial and she will have to file that in order to perfect the appeal. The respondent is well aware there is an automatic stay in effect pending the disposition of the appeal. There is no enforcement underway and no need for a Certificate of Stay.
Background
[3] The appellant is aggrieved at the respondent school board. At the heart of that grievance is a decision by a school principal to ban her from the school and to issue a trespass notice. This spawned a number of legal proceedings including the small claims court action which is the subject of this appeal.
[4] The appellant asserts that she is having difficulty perfecting the appeal because she has been unable to afford a transcript of the evidence that was before the deputy judge. She was before this court in March of this year seeking relief. Specifically, she sought to have the requirement declared unconstitutional and asked to be able to file a copy of the digital audio recording. For reasons given on that occasion, I dismissed the motion and I declined to grant an order relieving the appellant from the requirement set out in the appeal rules.[^1] I also set out in some detail the nature of the evidence I would expect on a successful motion.
The New Motion and Rule 61.09 (4)
[5] The appellant’s current motion is to some degree a repeat of the March motion. She continues to assert that the requirement to file a transcript is unfair and creates an unreasonable financial barrier to access to justice. She has not addressed lack of evidence to support a finding that she is impecunious and she has not addressed the need to show that the appeal has probable merit. I would need to be convinced that a meritorious appeal was in jeopardy due to an unreasonable and insurmountable financial barrier before I could conclude that the appellant’s access to justice is impaired.
[6] The situation is only different than it was in March because the appellant is now seeking that the appeal be deemed to be perfected on the basis of filing a photocopy of the transcript of day 2 of the trial and she seeks relief from the requirement to file three copies of the appeal material. She has filed only one. I have jurisdiction to give special directions and vary the requirements under Rule 61.09 (4) but I can only do so if the interests of justice require it. Apart from the financial consideration discussed above, I would also have to understand that the interests of justice could be served adequately by the modified requirements proposed by the applicant.
[7] There is a transcript available for the second day of the trial. This transcript was ordered by the respondent for other purposes and the appellant wishes to use this. It might be reasonable to do so if the grounds of appeal focused on something that occurred on day two and if the Respondent also agreed that is all that was needed. Indeed, as I pointed out in March, if the grounds for appeal were only concerned with an error of law evident in the reasons for judgment, it might be possible to argue the appeal based only on those reasons. Neither of these situations exist in the appeal as currently framed.
[8] The grounds for appeal in the Notice of Appeal include the assertion that “the evidence presented to the Court before and during the trial demonstrated that the Defendant caused the Plaintiff a loss and she deserved .. relief” and “the evidence presented to the Court before and during the trial demonstrated that the Plaintiff’s loss was caused by Defendant as a result of its negligence, prejudices, malice and as a retaliation for the Plaintiff’s requests and complaints”. Reading this generously and making allowances for the fact that the appellant is representing herself, this appeal requests the appeal court to review all of the evidence and to conclude that it was misconstrued by the trial judge. During argument and in her factum, the appellant is also arguing bias on the part of the trial judge.
[9] The appeal does not focus on any specific error that would justify the court in narrowing or excluding any portion of the trial record. Assuming she wishes to proceed with the appeal, the appellant will have to obtain the transcript and file the requisite number of copies of her appeal materials as required by the rules.
Certificate of Stay – Rule 63.03 (4)
[10] Turning to the request for a Certificate of Stay, it is not clear whether the Registrar refused to issue a certificate under Rule 63.03 (4) or simply failed to act upon the requisition because it was recognized or precisely what the situation may be. No notice of this motion was served upon Court Services Division of the Ministry of the Attorney General so I do not know what the explanation would be or what position the Registrar would take concerning the request for relief. There is no doubt that when an appeal has been launched, the appellant may obtain a certificate in Form 63A on requisition provided the requisition complies with Rule 63.03 (4) and (5).
[11] The purpose of such a certificate is to file it with the Sheriff so that the Sheriff is on notice of the stay and will not act on a writ of execution. This rule exists because Rule 63.03 (3) permits a judgment creditor to obtain a writ of execution and to file it with the Sheriff or land registry office notwithstanding the stay.
[12] In this case there was no attempt by the respondent to enforce the costs award by taking out a judgment and enforcing it. The only “enforcement” was a demand letter written to the appellant asking her when she would be paying the costs. Now that there is an appeal, the respondent acknowledges that enforcement would not be appropriate and has undertaken not to take such steps pending the disposition of the appeal. There is nothing in the hands of the Sheriff. As such, there is no need for me to order the Registrar to issue a certificate and I decline to do so.
Costs of Abandoned Motion
[13] The appellant also seeks costs of an “abandoned motion”. This was a motion for security for costs under Rule 61.06 which the respondent had indicated it would be bringing and may still choose to bring. There is no evidence that the appellant was put to any expense or prejudiced by the decision of the respondent not to proceed with that motion. I decline to order costs.
Motion Dismissed
[14] In conclusion, the appellant’s motion is dismissed. She shall have until December 31st, 2018 to perfect the appeal failing which the respondent may seek an order under Rule 61.13 dismissing the appeal for delay.
Costs
[15] The respondent is entitled to costs of this motion. I fix those costs at $600.00 on a partial indemnity scale.
Mr. Justice Calum MacLeod
Date: October 4, 2018
CITATION: Segura Mosquera v. Ottawa Catholic School Board, 2018 ONSC 5924
COURT FILE NO.: DC-17-2311
DATE: 2018/10/04
COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
RE: SEGURA MOSQUERA, GLADYS MILENA, Plaintiff (Appellant)
AND:
OTTAWA CATHOLIC SCHOOL BOARD, Defendant (Respondent)
BEFORE: Mr. Justice Calum MacLeod
APPEARANCES:
Gladys Milena Segura Mosquera, Appellant, in person
Joël Rocque for Respondent, OCSB
Reasons for decision
Mr. Justice Calum MacLeod
Released: October 4, 2018
[^1]: 2018 ONSC 2397, April 13, 2018