Court File and Parties
COURT FILE NO.: CV-20-00638954
DATE: 20200916
ONTARIO SUPERIOR COURT OF JUSTICE -
B E T W E E N:
MOTHER DOE, et al., Plaintiffs
– and –
HAVERGAL COLLEGE et al., Defendants
BEFORE: F.L. Myers J.
COUNSEL: Angela I. Salvatore, for the Plaintiffs
READ: September 16, 2020
Endorsement
The Motion
[1] The plaintiffs move in writing and without notice to the defendants for:
An Order compelling the court to release the audio and video recording of the hearing recorded on the Zoom Platform Virtual Courtroom #90 on April 9, 2020, at 10:15 a.m., before Myers J., to Kathie Bremner, Authorized Court Transcriptionist (“ACT”), with ACT Identification Number: 1549335043D
[2] The plaintiffs rely on s. 87 of the Consolidated Provincial Practice Direction that provides:
- Copies or access to digital recordings shall be provided upon request at no charge to the following:
a. Court Services Division Staff who require access in the course of their employment responsibilities; and,
b. Transcriptionists authorized by Regulation 158/03 under the Evidence Act who require access to transcribe court proceedings and who have signed an “Undertaking of Authorized Court Transcriptionist for Access to Audio Court Recordings”.
[3] The plaintiffs submit that since they are asking for release of the digital recording to or on behalf of a transcriptionist, the court is required to release the recording.
[4] For the reasons that follow the motion is dismissed.
The Facts
[5] On April 6, 2020, under the process for hearing urgent motions during the early stages of the pandemic, I was made aware of a request by the plaintiffs to bring an urgent motion without notice to the defendants in a newly issued action.
[6] By an endorsement dated April 6, 2020, I convened a case conference to be held that afternoon. My endorsement also incorporated a number of terms applicable to urgent cases during the pandemic, including the following:
The hearing may be recorded for the court’s purposes.
[7] After hearing counsel at the case conference, I released an endorsement to schedule a hearing of three motions on April 9, 2020. My endorsement is reported at 2020 ONSC 2137.
[8] On April 9, 2020, I heard the three scheduled motions over the Zoom videoconferencing platform. No evidence was heard live (or viva voce) during the hearing. Rather, counsel presented their oral arguments on matters for which the evidence had already been filed with the court in writing. I had read the evidence before the hearing commenced.
[9] No court reporter attended the hearing.
[10] I heard the motions from my home on my personal computer. I recorded the hearing on my computer.
[11] I released my decision on the motions on April 14, 2020. It is reported as Mother Doe v. Havergal College, 2020 ONSC 2227. My decision allowed the parties to deliver additional submissions on one issue. On April 27, 2020 I released a supplementary decision on the remaining issue. It is reported as Mother Doe v. Havergal College, 2020 ONSC 2593.
[12] The plaintiffs sought leave to appeal to the Divisional Court from the two decisions. By order dated May 12, 2020, reported as Doe v. Havergal College, 2020 ONSC 2958, the Divisional Court dismissed the motions for leave to appeal with costs.
[13] By email dated April 15, 2020, Ms. Salvatore, counsel for the plaintiffs, requested a transcript of the hearing on April 9, 2020. To provide a transcript, the transcriptionist would require access to an audio recording of the hearing. On April 22, 2020, the Court’s Recording Management Office advised Ms. Salvatore that there was no digital recording of the hearing in the court’s records.
[14] On April 23, 2020, I was provided with an order form under the Consolidated Provincial Practice Direction seeking access to the digital recording for the purpose of preparing a transcript of the entire proceeding. In the form, Ms. Salvatore confirmed that the plaintiffs were requesting a transcript of the entire hearing and that they did not want it for the purposes of an appeal.
[15] On May 8, 2020, I declined to release the recording and advised the office that the applicant may bring a motion pursuant to the Consolidated Provincial Practice Direction if so advised. The decision was passed on to Ms. Salvatore.
The Consolidated Provincial Practice Direction
[16] Part VI (C) of the Consolidated Provincial Practice Direction governs the manner by which people may obtain access to the court’s digital recordings of proceedings heard in court.
[17] Section 67 of the Consolidated Provincial Practice Direction grants access to the digital recording “in accordance with the requirements of this section.”
[18] Section 68 of the Consolidated Provincial Practice Direction provides that access to the court’s digital recordings is always at the court’s discretion.
- The release of digital recordings will be at the court’s discretion and the use of all digital recordings will be subject to any court order and any common law or statutory restriction on publication applicable to the particular proceeding.
[19] Section 73 of the Consolidated Provincial Practice Direction imposes further limits on access to digital recordings as follows:
Restrictions on Access to Digital Recordings from DRDs
All copies or access to digital recordings are subject to any express order the presiding judge may make. The presiding judge may expand or restrict access to the digital recordings in any particular proceeding before him or her.
Unless a judge of the Superior Court of Justice orders otherwise, no digital recordings are available to anyone in the following proceedings:
a. in camera proceedings or any portion of a proceeding that is heard in camera;
b. private or closed hearings (e.g. pursuant to ss. 87 of the Child, Youth and Family Services Act);
c. proceedings subject to a statutory, common law or court ordered restriction on the provision of transcripts or digital recordings of the proceeding (e.g., pre-trial conferences held in court with self-represented accused, pursuant to rule 28.05(4) of the Criminal Proceedings Rules of the Superior Court of Justice (Ontario), proceedings under the Youth Criminal Justice Act); and,
d. case, settlement and trial management conferences pursuant to rule 17 of the Family Law Rules; and,
e. civil and family motions and applications (e.g. civil motions and applications under rule 37 and rule 38 of the Rules of Civil Procedure, family motions under rules 14 and 15 of the Family Law Rules). [Emphasis added.]
[20] As set out in the emphasized words above, no digital recordings of civil motion hearings are available under the Consolidated Provincial Practice Direction. Therefore, even if the court recorded the hearing on its digital system, the plaintiffs have no right of access to a digital recording of the motions heard April 9, 2020.
[21] The rationale for this provision is well-understood. Unless there was evidence of a witness taken at the hearing, the transcript of a motion hearing serves no purpose. It is not required for an appeal. It is of no use in the proceedings.
[22] The court also makes recordings for its own purposes. This can include allowing judges to re-hear part of arguments while they are considering their decisions. It is also a reality of the times that the recordings may be accessed defensively in case of allegations of wrongdoing.
[23] Given the terms of the Consolidated Provincial Practice Direction denying access to digital recordings of civil motions and the specific term of the April 6, 2020 endorsement providing that the court might record the proceeding for its own purposes, the plaintiffs have no entitlement to obtain access to a recording of the motions. It was made for the court’s purposes alone.
[24] I have quoted s. 87 of the Consolidated Provincial Practice Direction above on which the plaintiffs rely. They argue that since their request for the digital recording was made to a certified transcriptionist, access to the digital recording is mandatory. However, this ignores ss. 67, 68, 73, and 74 quoted above that limit access to digital recordings and only grant access “in accordance with the requirements of this section”. The plaintiffs had no basis to ask a transcriptionist to obtain the digital recoding under the Consolidated Provincial Practice Direction. The transcriptionist did not have a basis under s. 87 (b) to “require access to transcribe court proceedings” under the Consolidated Provincial Practice Direction. The plaintiffs cannot enlarge their entitlement by seeking to have a request made by a transcriptionist in a case in which there is no entitlement to a transcript.
[25] With the denial of leave to appeal, this part of the proceeding is long since over. I have been provided with no basis for releasing the recording apart from an argument that doing so is mandatory and consistent with the court’s practices and policies. As demonstrated above, this is not correct.
[26] Were I to consider exercising a discretionary authority to release the recording, I note as well that the issue argued on April 9, 2020 involved a publication ban that was needed to protect teenaged defendants from the release of their names to the press by the plaintiffs and their lawyers. I have concerns about the potential use of transcripts of hearings in which actual names were used at times and many facts that would tend to identify the minors were discussed and debated. Creating documentation creates a risk that the material will be disclosed. As noted in the preceding paragraph, the plaintiffs offer no counterbalancing rationale for the release of the recording. Accordingly, to the extent that I have a residual discretion in light of the restriction in s. 74 (e) above, there is no basis to take the risk of a further release of information identifying the minors that justifies the exercise of any such discretionary authority.
[27] I have proceeded throughout as if the recording on my computer is equivalent to a recording on the court’s digital recording system taken by staff of the Recording Management Office. In light of my decision, it is not necessary to consider if this factual distinction might also contribute to the outcome.
F.L. Myers J.
Date: September 16, 2020