Court File and Parties
DIVISIONAL COURT FILE NO.: 439/24
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MARYAM FURNEY, AIDEN FITZGERALD FURNEY aka ALEX FITZGERALD FURNEY, CONNOR FITZGERALD FURNEY Appellants
AND: SHAHROKH GOLGOUN Respondent
BEFORE: Justice O’Brien
COUNSEL: M. Furney, and A. Furney, Self-Represented Appellants J. Frustaglio, for the Respondent
HEARD: In-writing
Endorsement
[1]
Background
The appellants request an adjournment of an appeal scheduled to be heard tomorrow. The appeal is from an order of Deputy Judge Qureshi in the Small Claims Court dated June 27, 2024. Deputy Judge Qureshi found the appellants liable to the respondent for $30,770 plus costs and interest. The appellants requested the adjournment earlier this week because they stated they have a conflict with a hearing scheduled for the same time in the Court of Appeal. The appellants also stated the respondent’s law firm had a conflict of interest in acting in this matter.
2The respondent opposes the adjournment and submits the appeal should be dismissed summarily without a hearing because of the appellants’ failure to follow the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and case management directions.
3The court received several e-mails with submissions from both parties earlier this week. Because of the conflict with the hearing at the Court of Appeal and in view of the respondent’s position that the appeal should be dismissed summarily, I gave the parties an additional opportunity to provide submissions in-writing on whether the appeal should be dismissed summarily without a hearing.
4Having reviewed the e-mails and submissions of the parties, I have decided the appeal shall be dismissed for the following reasons.
[5]
Analysis
The appellants have failed to follow the requirements of the Rules in that they have not obtained the transcripts from the Small Claims Court trial, including the deputy judge’s reasons for decision. The deputy judge’s written endorsement makes her order “for the oral reasons provided.”
6At a case conference on November 18, 2024 (Furney v. Golgoun, 2024 ONSC 6400), Myers J. addressed this issue with the appellants. In response to Ms. Furney’s submission that there was no reason to provide a transcript of evidence because the issues were legal issues, Myers J. pointed out that without the deputy judge’s reasons, the court cannot know whether the deputy judge resolved the issues correctly. Myers J. also pointed to r. 61.05(5), which requires the appellants to order a transcript of all oral evidence that the parties have not agreed to omit unless an order for relief is obtained under r. 61.09(4). The parties have not agreed to omit any evidence in this case, and nor has an order for relief been obtained.
7I also cannot see any basis to provide relief in the form of an order permitting the appellants to avoid ordering any transcripts whatsoever. The appellants’ factum does not rely only on legal argument. It states: “the judgment is fundamentally flawed due to errors of fact and law.” In any event, as Myers J. explained, the reasons of the deputy judge are required.
8The appellants submit now that they have complied with r. 61.10 by excluding irrelevant transcripts to streamline the appeal and focus on legal arguments. Nothing in r. 61.10 absolves the appellants from obtaining the transcripts of the underlying hearing. Indeed, r. 61.10(d) expressly requires that the appeal book and compendium contain “a copy of the reasons of the court or tribunal appealed from.”
9The appellants raised an additional submission, both before Myers J. and in written submissions to me. They submit the law firm representing the respondent should not be permitted to act because of a conflict of interest. Over a month ago, Myers J. noted that the appellants had not brought a motion to prohibit counsel from acting and that “it may be too late as a practical matter” given the pending appeal date. Although the appellants have raised this issue in submissions before me again this week, they still have not brought a motion. Having failed to bring a motion, these allegations do not form a basis to adjourn the appeal, nor to provide relief from the appellants’ failure to obtain the underlying transcripts.
10The endorsement of Justice Myers following the case conference stated: “[T]he appellants do indeed bear the responsibility to order, pay for and file in this court the transcripts of all oral evidence taken at trial.” Myers J. declined to dismiss the appeal for lack of perfection at that time, but stated: “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.”
[11]
Disposition
It is not possible for the court to hear the appeal without the underlying reasons. Where an appellant fails to perfect an appeal despite being given notice of the requirement to do so, the appeal may be dismissed: The Isaac v. Law Society of Ontario, 2022 ONSC 3577. The appellants in this case have had ample warning that they were required to obtain the underlying transcripts and have deliberately refused to do so. The appeal is dismissed.
[12]
Costs
The respondent seeks the opportunity to make costs submissions. Both parties may serve the other and upload costs submissions to Case Center by tomorrow. The practice in this court is that costs outlines are to be uploaded by the date of the hearing and addressed at that time. The court will review the submissions and provide further directions regarding costs.
O’Brien J
Original directions released by email: December 19, 2024
Signed endorsement released: February 25, 2025