Court of Appeal for Ontario

Date: 2019-04-24 Docket: M49883 (C65674) Judges: Rouleau, Miller and Fairburn JJ.A.

Between

Myriam Michail Moving party

and

Ontario English Catholic Teachers' Association, Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, and Sheila Brescia, London District Catholic School Board and Ontario Labour Relations Board Respondents

Counsel

Myriam Michail, in person

Christopher Perri, for the Ontario English Catholic Teachers' Association

Aud Ranalli, for the Attorney General of Ontario

Liam Ledgerwood, for the London District Catholic School Board

Aaron Hart, for the Ontario Labour Relations Board

Heard: March 20, 2019

Reasons for Decision

[1] The central issue in this motion to review is whether parties in this court are entitled to obtain and disseminate audio recordings of proceedings in this court on their own terms. The answer is no.

Background

[2] The moving party, Myriam Michail, is a former employee of the London District Catholic School Board. In 2010, she had a dispute with her former employer. The Ontario English Catholic Teachers' Association ("OECTA"), her union, became involved on Ms. Michail's behalf. Ms. Michail became dissatisfied with steps taken by the OECTA and filed an application with the Ontario Labour Relations Board ("OLRB") complaining of unfair representation. That application was unsuccessful.

[3] The course of proceedings since that time has been complex and irregular. An overview is provided in the reasons of this court dated October 25, 2018 and reported at 2018 ONCA 857. For the purposes of this motion, the following overview is sufficient. Ms. Michail brought an application for judicial review of the decisions of the OECTA and the OLRB before a single judge of the Superior Court, rather than the Divisional Court as would have been appropriate. Various procedural orders were made by the Superior Court in an attempt to regularize the process. Ms. Michail appealed those interlocutory orders to this court, and also brought a motion seeking, among other things, various exemptions from compliance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in relation to the appeal. She was granted an extension of time to file her materials, but the balance of the motion was dismissed. The respondents then brought a motion to quash the appeal on the grounds that this court lacked jurisdiction over appeals from interlocutory orders of the Superior Court. That motion was successful and the appeal was quashed by this court, with reasons reported at 2018 ONCA 857.

[4] Ms. Michail then brought another motion before a single judge of this court, seeking several orders chiefly related to the audio recordings from the hearings of the two earlier motions. She sought orders:

1. dispensing with the requirement that she sign a standard undertaking in order to obtain the release of audio recordings of the hearings of the motion of August 30, 2018, and the appeal of October 18, 2018;

2. permitting her to transcribe the proceedings;

3. directing the publication on the court's website of the reasons of Paciocco J.A. dated September 4, 2018; and

4. permitting her to challenge the constitutional validity and applicability of s. 136 of the Courts of Justice Act, R.S.O. 1990, c. C.43, specifically ss. 136(1)(a)(i), (b), (c), and 136(4).

[5] That motion was heard in writing by Brown J.A. and dismissed, with reasons reported at 2018 ONCA 950, and is the subject of the present motion to review. Ms. Michail renews the arguments she made before the motion judge, and further argues that the motion judge erred in his holding on jurisdiction. Specifically, she argues that he erred in finding he did not have jurisdiction to grant the relief sought – an order exempting her from the requirement that she provide an undertaking not to publish the audio recordings – because there was no longer a live appeal before the court. She argued that if a judge of this court had no jurisdiction to consider her motion for an exemption from the practice direction regarding the use of electronic devices in court, then there would be no forum in which she could raise that issue.

[6] Although we agree with Ms. Michail that the motion judge in fact had jurisdiction to decide her motion, the motion to review is nevertheless dismissed for reasons set out below.

Request to Video Record the Hearing of the Motion to Review

[7] At the outset of the hearing of this motion to review, Ms. Michail requested permission to video record the hearing of the motion and disseminate that recording. Ms. Michail took the position that the constitutional principle that proceedings of the courts be open to the public (the "open courts" principle) requires the court to permit video recording of its proceedings and dissemination of those recordings, subject to exceptions where justified. Accordingly, she argued, she was not required to provide any reason or justification for her request. In the alternative, she argued that video recording and publication was necessary in this instance as evidence of her experience in the court room. This is required, she argued, to keep judges and lawyers accountable to the public. She also argued that publication of the recording is necessary for public education.

[8] We dismissed the request.

[9] Video recording of proceedings in courts in Ontario are governed by s. 136(1) of the Courts of Justice Act. Section 136(1) establishes a general prohibition against video recording, subject to exceptions provided in s. 136(3). That subsection provides that the general prohibition does not apply to a video recording "made with the authorization of the judge". A judge is given statutory jurisdiction to authorize a video recording in three circumstances:

(a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing;

(b) in connection with any investitive, naturalization, ceremonial or other similar proceeding; or

(c) with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves.

[10] The moving party's principal submission was that she has a constitutional right to video record and disseminate the proceedings, subject to the court satisfying her that there is a compelling reason in the particular circumstance of this proceeding not to do so. As we understand it, the submission was not a constitutional challenge to s. 136, but rather grounded in the argument that all statutory grants of discretion must be exercised in accordance with the principles underlying the constitution. She argues that the open courts principle requires that video recording, streaming, and archiving be permitted.

[11] We do not agree. The open courts principle is one constitutional principle among many and is not automatically dispositive. Judicial discretion in this instance, like all exercises of judicial discretion, must be exercised in a manner that conforms to the requirements of the rule of law: Roncarelli v. Duplessis, [1959] S.C.R. 121. This includes the requirement that the exercise not be arbitrary, and that it respect authoritative precedents and rules established in advance by other institutions. Judges have a wide discretion to authorize video recording under s. 136(3), but there must be some reason for it that relates to the circumstances of the particular case: R. v. Dunstan, 2017 ONCA 432, at para. 55. What the moving party is seeking is, in effect, to create a default authorization for video recording. This would be contrary to the Act. Proposals to amend the Act to allow video recording of hearings of motions and appeals, as the moving party pointed out, have been made from time to time. Whatever the merits of those proposals, they have not been adopted legislatively, and are not law.

[12] In the alternative, the moving party also offered reasons for her demand. These were evidently framed so as to bring the demand within the exceptions in s. 136(3)(a) and (c): that a video recording was required for "the making of a record or for any other purpose of the court hearing", and for educational purposes.

[13] With respect to educational purposes, she argued that it would benefit the people of Ontario generally, and those with an interest in labour law particularly, to be educated by viewing her arguing her motion to review the motion judge's decision.

[14] With respect to "the making of a record or for any other purpose of the court hearing", she argued that a record of the proceedings was needed to document any abuse of process that might occur during the hearing.

[15] In our view the moving party has not established that this is an appropriate case in which we should exercise the discretion provided by s. 136(3).

[16] Courts have interpreted s. 136(3) as providing broad authority to authorize video recording where it facilitates the presentation of evidence or otherwise assists in the presentation of a party's case at trial: Restoule v. Canada (Attorney General), 2018 ONSC 114, at para. 36; Dunstan, at para. 52. In the unusual circumstances of Restoule, broadcasting and archiving of video recordings of the trial were permitted. Unlike the present motion, which is at root a dispute between private parties with little if any broader significance, the issues in Restoule are public law disputes of great public significance – the interpretation of treaties signed in 1850, and Crown liability flowing from them. It was anticipated that the evidence to be presented would be significant:

The evidence already collected in the expert reports of the witnesses may be the best curated collection of the history of the events leading up to these treaties ever assembled. In addition, the evidence from Elders, Chiefs, and ethno-historians on the lives, culture and beliefs of the Great Lakes Anishinaabe constitutes a major collection in itself.

[17] Most significantly, many of the treaty beneficiaries reside in remote and isolated communities spread out over a vast area of land. The extraordinary step of holding the proceedings in four separate communities was itself determined not to be an adequate response to the problem of lack of access to the proceedings for those affected. Accordingly, the motion judge in Restoule determined that live stream broadcasting and archiving of the proceedings was necessary "for providing a process that is perceived to be fair by the parties", coming within the discretion provided by s. 136(3)(a) to grant an order "for any other purpose of the court hearing."

[18] The moving party's motion has nothing in common with Restoule. An idiosyncratic and unsubstantiated distrust in the legal system does not generate an entitlement to create a video record of proceedings on demand under s. 136(3)(a). This court is not a court of record, and it is not clear what record the moving party wished to create. Unlike in Restoule, her appeal has been quashed and there is no proceeding in existence. And unlike in Restoule, the purpose for which she seeks a video recording is unrelated to the substance of the hearing itself.

[19] The argument that a video recording was sought for public education purposes under the exception set out in s. 136(3)(c) likewise fails. The moving party's argument rests on reading "education" as encompassing the generation and dissemination of any piece of information. This is too broad a reading. The moving party is not engaged in education or instruction in the sense intended by the statute.

The Motion to Review the Motion Judge's Decision

[20] This court makes digital audio recordings of its proceedings for internal use. These recordings are not governed by s. 136, which addresses the actions of third parties in making recordings. This court makes these recordings pursuant to its inherent power to govern its own process. As set out in s. 17 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, the court makes the recordings available to the parties upon request, for personal use only, and on the condition that the person requesting the recording sign an undertaking agreeing to respect the limits on the permitted uses of the recording.

[21] Section 17 of the Practice Direction prohibits dissemination of the digital audio recording, but also provides that the prohibition is subject to a court order to the contrary. In our view, the Practice Direction allows for an application to be made to a single justice of this court, for an order dispensing with the requirement that the digital audio recording not be disseminated. The moving party's motion was therefore properly before the motion judge. However, for the reasons given above with respect to the video recording, the motion is properly dismissed. The moving party did not provide any reason that would justify releasing her from the obligation not to disseminate.

[22] The motion judge made no error in dismissing the motion for an order that certain reasons for decision be posted to the court's website. As the motion judge noted, it is left to the individual motion judge to decide whether or not to publish his or her reasons on the court's website. The operational decisions of this court are not subject to review.

[23] With respect to the proposed challenge to the constitutional validity of the s. 136 of the Courts of Justice Act, the motion judge made no error in dismissing the motion for lack of jurisdiction. A constitutional challenge to a statute cannot be brought in this court in the absence of a valid appeal. As the appeal had been quashed, the motion judge made no error in dismissing the motion.

Disposition

[24] The motion is dismissed. Costs are awarded to the respondent London District Catholic School Board in the amount of $1,000 inclusive of disbursements and HST.

Paul Rouleau J.A.

B.W. Miller J.A.

Fairburn J.A.