Court of Appeal for Ontario

Date: September 26, 2019

Docket: M50829 (C67308)

Motion Judge: Brown J.A.

Between

Gladys M. Segura Mosquera Plaintiff (Appellant/Moving Party)

and

City of Ottawa (Ottawa Public Library) Defendant (Respondent/Responding Party)

Counsel

Gladys M. Segura Mosquera, in person

David Campbell, duty counsel

Stuart Huxley, for the responding party

Heard: September 25, 2019 by teleconference

Reasons for Decision

The Nature of the Motion

[1] The moving party, Gladys M. Segura Mosquera, has filed a notice of appeal from the order of Parfett J. dated July 2, 2019, which dismissed her application against the City of Ottawa (Ottawa Public Library) (hereafter the "Library").

[2] The originating notice of application was not included in the motion materials filed with this court. However, as described in the motion materials, the origins of the dispute between Ms. Segura and the Library lie in an event involving library fees that took place in February 2019 that led the Library to issue some form of notice requiring Ms. Segura to leave the premises and not return. Ms. Segura commenced an application seeking relief of some sort under the Class Proceedings Act, 1992, S.O. 1992, c. 6, and injunctive relief.

[3] Parfett J. dismissed the application holding that Ms. Segura's materials did not disclose a cause of action but concerned an administrative dispute between herself and the Library. The application judge dismissed the rest of the requested relief as moot because the Library: (i) had rescinded the notice of eviction; (ii) advised Ms. Segura that she was welcome to return; and (iii) provided all the materials necessary to assist in determining what, if any, money Ms. Segura owed to the Library.

[4] The order of Parfett J. was made July 2, 2019. Ms. Segura filed a notice of appeal on August 9, 2019. Notwithstanding the subsequent passage of 30 days, Ms. Segura has not yet perfected her appeal: Rules of Civil Procedure, r. 61.09(1)(a).

[5] Which is the reason she has brought this motion. Ms. Segura seeks: (i) an extension of time to perfect her appeal; (ii) leave to serve her appeal materials electronically; (iii) dispensation under rule 61.09(4) from filing three hard copies of her appeal materials; and (iv) dispensation from filing a transcript of evidence of the proceeding below.

Extension of Time to Perfect the Appeal

[6] The Library consents to a modest extension of 30 days to perfect the appeal. I am satisfied that in the totality of the circumstances such an extension should be granted, and I extend the time to perfect the appeal until October 25, 2019.

Electronic Service of the Appeal Materials

[7] Ms. Segura may serve her appeal materials electronically.

Transcript of the Oral Reasons

[8] I see no need for a transcript of the argument on the application, which typically is not filed on an appeal. As to the application judge's oral reasons for judgment, Ms. Segura has already prepared a draft of the oral reasons using the recording of the hearing provided by the court. The Library's counsel has reviewed the draft and agrees with its accuracy. Accordingly, I order that that agreed-upon transcription of the application judge's oral reasons satisfies r. 61.10(1)(d) and shall be included in the appeal book and compendium.

Relief Under Rule 61.09(4) From Filing Hard Copies

[9] Finally, Ms. Segura seeks relief from the standard requirement that an appellant file with the court three copies of her factum and appeal book and compendium, as well as one copy of the exhibit book. She relies on r. 61.09(4) contained in the section of the Rules dealing with "Perfecting Appeals," which states:

If it is necessary to do so in the interest of justice, a judge of the appellate court may give special directions and vary the rules governing the appeal book and compendium, the exhibit book, the transcript of evidence and the appellant's factum.

[10] I doubt an exhibit book is required in this case. So, Ms. Segura's request really amounts to asking that she not be required to file with the court three hard copies of her factum and appeal book and compendium. Ms. Segura estimates it would cost her approximately $250 to prepare and file hard copies of those appeal materials. I would note that if dispensation from filing hard copies is granted, then court staff will have to make the requisite number of copies for the panel hearing Ms. Segura's appeal.

[11] Ms. Segura has included in her motion record endorsements from several other judges of this court made in other proceedings this year that dispensed with the requirement to file hard copies of her appeal materials by reason of her modest financial resources: M49625; M49634; M50205. I have examined the court files for those and other proceedings initiated this year by Ms. Segura. Over the past three months, panels of this court have denied Ms. Segura leave to appeal in four proceedings:

• June 28, 2019: Segura Mosquera v. Ottawa Catholic School Board, M49634;
• July 8, 2019: Her Majesty the Queen v. Segura Mosquera, M49625;
• September 3, 2019: Segura Mosquera v. City of Ottawa, M50205; and
• September 13, 2019: Segura Mosquera v. Ottawa Catholic School Board, M50412.

[12] That is an unusually large volume of litigation by an individual before this court over a short period of time. In three of those dismissed proceedings, Ms. Segura had obtained dispensations from filing hard copies of appeal materials.

[13] At the hearing, I raised this litigation history with Ms. Segura and asked why she should be granted relief from filing hard copies as required by the Rules. Ms. Segura made two submissions.

[14] First, Ms. Segura submits that each case is different and should be considered separately.

[15] While that may be true, the unusually large volume of unsuccessful proceedings initiated this year by Ms. Segura is a factor in the r. 61.09(4) analysis, as are the merits of her present appeal. These factors are relevant because I do not regard rule 61.09(4) as designed to provide relief from compliance with the rules for litigants who initiate significant volumes of unmeritorious appeals in this court.

[16] The motion materials indicate that the merits of her appeal are weak. The dispute she had with the Library is now moot: the Library revoked the notice of eviction and Ms. Segura is free to use its facilities. Since Ms. Segura did not file her originating notice of application on this motion, I have some difficulty trying to conceptualize how her interaction with Library staff on February 22, 2019 could give rise to a legal cause of action that raises common issues with some identifiable class, as required by the Class Proceedings Act. Accordingly, I do not find Ms. Segura's first submission persuasive.

[17] However, Ms. Segura made a second submission in support of her request for relief from compliance pursuant to r. 61.09(4).

[18] Ms. Segura argues that since the Court of Appeal for Ontario accepts electronic copies of appeal materials by email – which we do – why does any litigant have to file additional paper copies? Why aren't the electronic copies simply passed along to the judges who can then use the electronic versions to prepare for and hear appeals?

[19] Ms. Segura poses some very good questions. I do not have any good answers.

[20] I agree with her submission that parties should be able to have their electronic filings treated as sufficient for all purposes and that the judiciary should operate with electronic records. Unfortunately, the reality is that we do not, although we should. Some changes may well be in the offing. But the prospect of improvements to the court's technological infrastructure and work environment some time down the road is of cold comfort to present-day litigants, such as Ms. Segura.

[21] Ms. Segura enjoys a statutory right of appeal from the order of the application judge. She has satisfied the statutory requirements to obtain a fee waiver for her appeal: Administration of Justice Act, R.S.O. 1990, c. A.6., s. 4.2. While her estimate of $250 to copy and file appeal materials in accordance with the Rules might to some seem a modest amount, for Ms. Segura it represents 25% of her assessed monthly income. That is a huge amount for her.

[22] Consequently, I am persuaded that it is necessary in the interests of justice to grant Ms. Segura relief from filing hard copies of the appeal materials specified in r. 61.09. She need only file by email one electronic copy.

[23] I appreciate that in the Court of Appeal's present paper environment granting relief from compliance with the Rules will impose photocopying costs on the Ministry of the Attorney General. It will also result in additional work for our excellent Registry Office staff who will have to prepare the paper copies of the appeal materials that then will be wheeled around to the judges. But until a proper technological infrastructure is installed in this court and the judiciary adopts electronic documents as the working norm, that is a small price to pay by a public institution when compared with the huge cost that paper filing would impose on Ms. Segura.

Disposition

[24] For the reasons set out above, I allow the motion in part and make the following orders:

(i) The time to perfect the appeal is extended until October 25, 2019;

(ii) The appeal materials may be served electronically;

(iii) The transcription of the oral reasons of Parfett J. shall be done in accordance with para. 8 above; and

(iv) I grant Ms. Segura relief from filing the hard copies of appeal materials enumerated in r. 61.09. Instead, she may email one electronic copy of her appeal materials to the court Registry Office.

[25] The parties agree that there shall be no costs of this motion.

"David Brown J.A."