Court File and Parties
CITATION: Segura Mosquera v. City of Ottawa (OC Transpo), 2019 ONSC 1023
COURT FILE NO.: DC-17-2291
DATE: 20190211
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVSIONAL COURT
RE: Segura Mosquera, Gladys Milena, Appellant
AND
City of Ottawa (OC Transpo), Respondent
BEFORE: Madam Justice R. Ryan Bell
COUNSEL: Self-represented, Appellant
Matthieu Charron, for the Respondent
HEARD: October 19, 2018 and February 8, 2019
ENDORSEMENT
Ryan Bell j.
[1] The appellant seeks an order under Rule 61.09(4) “accepting the digital service and filing of the perfection material made on June 26, 2017” and directing the Registrar to list her appeal for hearing. She is appealing a decision of a Deputy Judge who dismissed her Small Claims Court action against the respondent.
[2] For the following reasons, the appellant is not entitled to the relief she seeks. The grounds for appeal she is advancing require a transcript of the trial; in order to perfect the appeal, she will have to file the transcript. The appellant’s motion is therefore dismissed.
Background
[3] The appellant’s claim relates to several incidents on OC Transpo buses. She alleges that on May 20, 2015, the bus driver hit her in the back and refused to apologize. She alleges that on July 3, 2015, her son got trapped by the bus doors when getting off the bus. She alleges that on February 3, 2016, a bus driver talked to her in a rude manner, that on March 17, 2016, a bus driver refused to give to her, her son’s transfer, and that on May 25, 2016, she saw the bus doors “trapping an old lady.”
[4] At trial, the Deputy Judge heard from several witnesses and received exhibits into evidence. He dismissed the appellant’s claim without hearing from the respondent. The endorsement of the Deputy Judge states “for reasons given, the claim is dismissed. No costs.”
Nature of the Appeal
[5] The appellant’s notice of appeal lists the following grounds of appeal:
The judge made an error sufficient to justify overturning his decision.
The evidence and testimonies at the trial demonstrated that the defendant caused the Plaintiff a loss and deserved a relief.
The defendant did not demonstrate that the Plaintiff’s loss was not its fault; nor a result of its negligence; was justified or acceptable in the ordinary conduct of everyday life; or could be considered a trifle.
[6] The issues on appeal, as set out in the appellant’s factum, are wide-ranging:
• Did the Deputy Judge err by granting the respondent’s non-suit motion?
• Did the Deputy Judge err by not allowing the appellant to present her arguments from the witness stand?
• Did the Deputy Judge err by deciding that there was no evidence of battery?
• Did the Deputy Judge err by “disregarding the obligation all Courts have to protect the Constitutional rights of Canadian residents”?
• Did the Deputy Judge err in law by “deeming” the bus driver’s version of the May 20, 2015 incident as the “truthful version” of the incident and “giving deference” to his testimony?
• Did the Deputy Judge err by not considering the “exhibited evidence” that supported the appellant’s claim in negligence?
• Did the Deputy Judge err by not considering the July 3, 2015 incident?
• Did the Deputy Judge err by deciding that there was no evidence that the other incidents had caused the appellant any harm?
[7] The appellant has certified that the exhibits and the oral evidence of all the witnesses heard at trial are required for the appeal.
Analysis
[8] The requirements to perfect an appeal are set out in Rule 61.09 of the Rules of Civil Procedure. Rule 61.09(4) provides that 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.
[9] This is not the first time the appellant has moved for relief from Rule 61.09. As the appellant is aware from the decision of MacLeod J. in Segura Mosquera v. Ottawa Catholic School Board, 2018 ONSC 2397, to obtain relief from the requirements of the appeal rules, the appellant would have to demonstrate at least the following:
• the appeal has apparent merit and an injustice will be done if it cannot proceed;
• she has exhausted all other methods of narrowing the scope of the evidence and reducing the cost;
• the actual cost of complying with the rule;
• she is impecunious and cannot afford to perfect the appeal; and
• the appeal can be appropriately argued without a transcript and doing so would neither place an unreasonable burden on the court nor prejudice the respondent.
[10] On that occasion, MacLeod J. dismissed the appellant’s motion on the basis that the evidence before the court was inadequate to support the relief sought. The appellant brought a second motion for relief. The second motion was also dismissed by MacLeod J because the appellant had failed to address the lack of evidence to support a finding that she is impecunious and the need to show the appeal had probable merit (Segura Mosquera v. Ottawa Catholic School Board, 2018 ONSC 5924, at para. 5).
[11] There is some evidence before me as to the appellant’s financial circumstances. It is not necessary, however, for me to determine whether the appellant is impecunious because the appellant has failed to persuade me that the appeal has apparent merit and that the appeal can be appropriately argued without a transcript.
[12] The Deputy Judge heard from witnesses called by the appellant and exhibits were placed in evidence. The Deputy Judge determined that he did not need to hear from the respondent before dismissing the action. The appellant also purported to advance a claim on behalf of her son in relation to the July 3, 2015 incident. There is no evidence that the appellant has been appointed as litigation guardian. The evidence before this court does not persuade me that there is any merit to the appeal.
[13] Even if the appellant had demonstrated an appeal with apparent merit, I am not persuaded that the appeal can be appropriately argued without a transcript. The appellant submitted that she could proceed with “just a line or two” from the Deputy Judge’s oral reasons. That submission is belied by the issues raised on appeal as outlined in the appellant’s factum and her certificate respecting evidence in which she states that the exhibits and the oral evidence of all the witnesses heard at trial are required for the appeal. Should the appeal proceed, a transcript will be required to fully understand the Deputy Judge’s decision and the evidence upon which that decision was based. In light of the errors alleged by the appellant, it would be inappropriate for the court to narrow or exclude any portion of the trial record.
[14] The difficulties in relying on an audio recording were canvassed by MacLeod-Beliveau J. in KM v. Marson, 2017 ONSC 2972. The appeal judge would be placed in the role of determining what was said by the witnesses and, potentially hearing argument on what was said, if there were a disagreement between the parties. The parties and the appeal judge would be required to review the audio recording, a process that would be both time-consuming and costly.
[15] I conclude that to allow the appeal to be argued without a transcript would be inappropriate, would place an unreasonable burden on the court, and would be prejudicial to the respondent. The appellant has not persuaded me that the appeal is meritorious. Therefore, the motion is dismissed.
Costs
[16] The appellant submits that costs should be in the discretion of the judge hearing the appeal. I disagree. There is no reason to defer the determination of costs to the appeal judge. The respondent is entitled to its costs of this motion. I fix those costs at $600, on a partial indemnity scale. The costs are to be paid within 60 days.
Justice R. Ryan Bell
Date: February 11, 2019
CITATION: Segura Mosquera v. City of Ottawa (OC Transpo), 2019 ONSC 1023
COURT FILE NO.: DC-17-2291
DATE: 20190211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: Segura Mosquera, Gladys Milena, Appellant
AND
City of Ottawa (OC Transpo), Respondent
BEFORE: Madam Justice R. Ryan Bell
COUNSEL: Self-Represented, Appellant
Matthieu Charron, for the Respondent
ENDORSEMENT
Madam Justice R. Ryan Bell
Released: February 11, 2019