Court of Appeal for Ontario
Citation: Allen v. Kumar, 2024 ONCA 294
Date: 20240418
Docket: M54986 (COA-23-OM-0310)
Roberts J.A. (Motion Judge)
BETWEEN
Terry Allen, Irene Allen, Christopher Robinson, Crystal Robinson, Sean Deline, Kristy Elik, Max Careau, and Robin Kumar
Plaintiffs (Respondents/Responding Parties)
and
Brian Anish Kumar*, John Doe, Jane Doe and Doe Corporations
Defendants (Appellant/Moving Party*)
Brian Anish Kumar, acting in person
Ashley Ferguson, for the responding parties
Heard: April 15, 2024
ENDORSEMENT
[1] On July 18, 2022, Associate Justice Robinson struck out Mr. Kumar’s statement of defence due to his failure to pay a costs order and his pattern of non-compliance with court orders and procedural obligations. On November 2, 2023, the Divisional Court dismissed Mr. Kumar’s appeal. On January 2, 2024, Mr. Kumar perfected his motion for leave to appeal the Divisional Court’s decision to this court. On March 13, 2024, Coroza J.A., in chambers, ordered that by March 28, 2024, Mr. Kumar post $5,000 as security for the respondents’ costs in relation to his motion for leave to appeal.
[2] Mr. Kumar did not post the ordered security for costs. He commenced a review motion to a panel of this court of Coroza J.A.’s order, which has not yet been perfected.
[3] On the motion before me, Mr. Kumar seeks permission to have transcribed the digital recording of the February 23, 2024 security for costs hearing before Coroza J.A. He argues that the transcript is necessary for his submissions on the review motion. Specifically, he submits that Coroza J.A. erred by misapprehending or ignoring certain of his submissions and that he requires the transcript of the hearing to support his position on the review motion. Mr. Kumar agreed that he would not need a transcription if he were provided with a copy of the digital recording of the hearing.
[4] As the transcript sought is not a transcript of oral evidence, Mr. Kumar was required to bring a motion for permission to obtain a transcription of the hearing before Coroza J.A. or to obtain a copy of the digital recording for use on the review motion. Accordingly, the overarching consideration on this motion is whether the justice of the case warrants the exercise of the court’s discretion to grant the relief sought. Among other factors, I must balance the prejudice to the respondents by any further delay with Mr. Kumar’s ability, as a self-represented party, to fully argue his review motion. Although it appears to me that the present record is sufficient to allow Mr. Kumar to make most of his arguments, and he did not provide supporting affidavit evidence for his contention that the recording will show arguments that were misunderstood or ignored, I am prepared to give Mr. Kumar the benefit of the doubt that the digital recording may be of assistance to him for the purpose of making his arguments on the review motion.
[5] Importantly, while the respondents generally object to this motion, their real objection lies in the further delay caused by it, specifically, by obtaining the transcription of the digital recording. Although they see Mr. Kumar’s review motion as another attempt to delay the proceedings, and notwithstanding his failure to pay costs orders that have nothing to do with this appeal, the respondents do not seek to stop Mr. Kumar from bringing his review motion – they have even agreed to a provisional stay of the security for costs order pending the review motion, provided that the review motion is expedited. To expedite the review motion, the respondents agree that, if permitted, Mr. Kumar may refer to a digital recording rather than to a transcript to make his submissions. Further, they ask that an order be made expediting the hearing of the review motion, with a tight timeline for the exchange of materials, and requiring the review motion to be heard at the earliest date, whether in writing or orally, as the case may be.
[6] In these circumstances, I find it is just to make the following order:
In order to expedite this matter, at no cost, without further application but subject to providing the undertaking described below, the parties shall be provided with a copy of the digital recording of the hearing before Coroza J.A. on February 23, 2024, and three copies shall be provided to the panel hearing the review motion. The court office shall advise the parties (and me) when the recording is available. The parties or their counsel shall sign and give to the court office the undertaking attached to this endorsement as a condition of being provided with a copy of the digital recording.
The hearing of the review motion shall be expedited. This is essential in the interests of fairness.
Within twelve days of being advised that the recording is available, Mr. Kumar shall serve and file his motion record and factum for the review motion. Mr. Kumar has had over a month to start to prepare his materials. Mr. Kumar did not need the digital recording to start preparing his materials.
The respondents shall serve and file their responding materials within twelve days of receipt of Mr. Kumar’s materials.
Any reference to any part of the digital recording in the parties’ facta shall be made to the specific time notation on the recording, as, for example, to “10:15:26 a.m.”.
In order to expedite the review motion, it shall be heard in writing by a panel on the earliest possible date during the month of May following the filing of the parties’ materials.
[7] I will remain seized of this matter in case any case management issues arise.
[8] I make no order as to costs.
“L.B. Roberts J.A.”
Appendix A