Ontario Court of Appeal considers audio recordings in appeals

The Ontario Court of Appeal has left the door open to allowing the submission of audio recordings of trials instead of transcripts in certain cases.

In Girao v. Cunningham, the appellant, Yolanda Girao, asked the court to set aside a judge’s dismissal of her motion requesting that she would not be required to submit transcripts of the 20-day jury trial in her appeal.

She was self-represented and had argued that she would not be able to afford the transcripts.

The court ultimately dismissed Girao’s motion, but in its commentary it said that there may come a day in the future when audio recordings may be used with the consent of all parties.

“In due course, as the court embraces modern technology and electronic data, the time may come when the rules requiring the filing of paper transcripts are made more flexible,” said the decision on behalf of a three-judge panel.

“The preparation of transcripts adds significant cost to many appeals and often accounts for the major portion of the delay in scheduling them. However, practices and procedures must be developed to enable parties and the court to use audio recordings efficiently,” the court said.

“This is going to be a constant issue that I think the court is going to be faced with more and more — that self-reps can’t afford their transcripts,” says Michael Best, a partner with Miller Thomson LLP, who represented the respondent in the case.

The court found that both parties in an appeal would have to consent in order to develop the necessary practices for using an audio recording in an appeal. In this case, the respondent argued that transcripts would be necessary as the issues raised in Girao’s notice of appeal were largely fact-driven and the court would need the full evidentiary record to determine the appeal.

The court of appeal found that was a reasonable position and that the use of an audio recording in this appeal “would not be practicable.”

Lawyer Stuart O’Connell, who was not involved in the case, says the Rules of Civil Procedure currently allow appeal judges to vary the rules regarding transcripts where it is in the interests of justice to do so.

“But either way, allowing in the audio in place of written transcript can create practical problems and give rise to issues of fairness,” he says.

“However, it would seem to me that these difficulties are not necessarily insurmountable.” 

Toronto lawyer Jordan Donich, who did not act in the case, says requiring transcripts is likely easier for the courts as everything is prepared in advance, and it also passes along the cost to the appellant or respondent.

He says the decision is another example of the slow pace at which the legal profession catches up to the rest of the business world.

“The legal profession is like a dinosaur,” he says. “It will catch up. It always does. But, for whatever reason, it’s three cycles behind everything else in business.”

Girao could not be reached for comment before deadline.