Court of Appeal for Ontario

Date: 2017-10-23

Docket: M48076 (C63778)

Panel: MacPherson, Juriansz and Roberts JJ.A.

Between

Yolanda Girao Plaintiff (Appellant) (Moving Party)

and

Lynn Cunningham and Victor Mesta Defendants (Respondent) (Responding Party)

Counsel

Yolanda Girao, acting in person

Michael J.T. Best, for the responding party

Heard: October 19, 2017

Reasons for Decision

[1] The applicant seeks to set aside the decision of the chambers judge dismissing her motion for an order allowing her to perfect her appeal without filing a transcript of proceedings. Her appeal is from a 20-day jury trial and threshold determination of the judge. The chambers judge decided that the issues the applicant raises in her notice of appeal are largely fact-driven, and an appellate court would be in no position to determine the validity of her appeal without a full evidentiary record.

[2] In her submissions the applicant addressed the merits of the appeal and stressed her financial inability to obtain the transcripts. While we are sympathetic with the applicant's plight, we can see no error in the chambers judge's conclusion that the transcripts are necessary to enable the court to properly determine the appeal.

[3] Before us, the applicant sought leave to file a digital audio recording of the trial instead of transcripts.

[4] In due course, as the court embraces modern technology and electronic data, the time may come when the rules requiring the filing of paper transcripts are made more flexible. The preparation of transcripts adds significant cost to many appeals and often accounts for the major portion of the delay in scheduling them. However, practices and procedures must be developed to enable parties and the court to use audio recordings efficiently. It is best that the experimentation needed to develop the needed practices take place with the consent of all parties in an appeal actively managed by a judge of the court. In this case, the respondent strenuously asserts transcripts are essential for the proper hearing of the appeal. We cannot say the respondent's position is unreasonable.

[5] In the circumstances, we are of the view the use of an audio recording instead of transcripts in this appeal would not be practicable.

[6] The motion to set aside the order of the chambers judge is dismissed. We see no utility in granting the applicant's further request for additional time to obtain the transcripts. Costs in favour of the respondent are fixed in the amount of $2,000, inclusive of applicable taxes and disbursements.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

L.B. Roberts J.A.