Court File and Parties
CITATION: Furney v. Golgoun, 2024 ONSC 6400
DIVISIONAL COURT FILE NO.: 439/24
DATE: 20241118
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Aiden Alex Fitzgerald Furney and Maryam Furney, Appellants
-and-
Shahrokh Golgoun, Respondent
BEFORE: FL Myers J
COUNSEL: Maryam Furney on her own behalf
Sabrina Waraich, for the Respondent
HEARD: November 18, 2024
CASE CONFERENCE ENDORSEMENT
[1] The Furneys appeal a judgment of the Small Claims Court holding them jointly and severally liable to Mr. Golgoun for $30,770 plus $1,000 for costs and interest (prejudgment and postjudgment) at 16% per annum.
[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.
[10] I am not prepared to move the hearing date now in light of the risk that this appeal is never perfected. The sooner Ms. Furney files proof of ordering transcripts, the better. The respondent has already delivered his factum for the appeal. So there is no reason for this issue to hold up the hearing provided that Ms. Furney obtains the judge’s reasons at minimum.
[11] Ms. Furney began the case conference today by seeking an adjournment. She says she only received the respondent’s three-page Aide Memoire on November 14, 2024. But she had time to write and deliver her memos and
she made full argument on the merits of the transcript issues with specific references to the correct rules. Her own argument established that she had no need for any deferral of this case conference.
[12] Finally, Ms. Furney objects the lawyers for the respondent continuing to act. She says a partner at the firm acted for her in April, 2023 in a related matter and obtained confidential information. I am shown some email traffic including Ms. Furney sending a raft of material to the lawyer after he declined the retainer. However, he also wrote that he had reviewed some, “searches and history” before doing so. He seems to have had some information, therefore. I have no idea if any of it was confidential or related to the issues in this proceeding. I am in no position to determine if counsel is in a conflict of the type that would preclude them acting at this stage. To date the Furneys have not brought a motion to prohibit counsel from acting either below or here. It may be too late as a practical matter. The time to do so is very tight before the appeal hearing.
[13] Finally, I note that Ms. Furney made no objection to me hearing this case conference despite the issues raised in Furney v. CIBC, 2024 ONSC 5156. I did not raise the issue myself today because: (a) Ms. Furney is well aware of it; (b) she did not raise it; and (c) the issues in this case conference are mundane and do not require any findings of note.
[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.
[15] Costs of today are fixed at $1,000 and are reserved to the judge who hears the appeal.
FL Myers J
Date: November 18, 2024