Ontario Court of Appeal reaches “imperfect compromise” and calls for solution regarding transcription fees for appeals

Authorized court transcriptionists (“ACTs”) are regulated in Ontario, but inconsistencies in the framework governing their profession leave unclear how much they may charge for certified copies of transcripts for use on appeal. In R. v. C.G., Justice Watt recently resolved this question with an “imperfect compromise”. At the same time, Watt J.A. called on the Ministry of the Attorney General to correct the inconsistencies in a manner that promotes access to justice, ensures fair compensation for ACTs, and achieves the call for timely justice reflected in R. v. Jordan.

Inconsistency in the governing framework

The issue of transcript fees came before the Court of Appeal because the appellants (one of them, C.G., being a young person) had no means of appealing their convictions because they lacked trial transcripts due to a dispute with the ACTs who transcribed the trial. The ACTs took the position that they were entitled under Fees for Court Transcripts, O. Reg. 587/91 (the “Regulations”) to charge $4.30 per page for the first certified copy and $0.55 per page for each additional certified copy. These fees for additional copies proved to be somewhat significant. C.G.’s trial required transcription of 20 days of evidence, and the appellant must procure five copies of the transcript: one for himself, one for the Crown, and three for the court (see Criminal Appeal Rules, SI/93-169).

On their face, the Regulations appear to support the ACT’s position. However, the ACTs are also subject to the Court Transcript Standards and Procedures Manual of the Ministry of the Attorney General, which inconsistently states that the “Ministry shall print copies of court transcripts required for the Court of Appeal for Ontario or the Divisional Court at no cost to the ACT or the ordering party.” Based on this, C.G. contended that the transcripts should be at no additional cost.

This inconsistency reflects the Ministry’s June 9, 2014 changes to the regime. Prior to this, court reporters and court monitors were employees of the Ministry and, where transcripts were required for an appeal, the appellant would only be charged a prescribed fee of $3.75 per page for a single copy. The additional copies for use on the appeal would be printed and bound by the Queen’s Printer at no cost to the parties or the court reporter/monitor. As of June 9, 2014, however, court transcription has been performed by ACTs as “independent contractors.” The post-June 2014 Regulations provide for a per-page fee for additional certified copies, but the Manual continues to contemplate the Queen’s Printer printing and binding the additional copies at no cost to the parties.

The “imperfect compromise”

It is tempting to resolve the inconsistency with the principle that an unambiguous regulation ought to prevail over other government instruments, such as the manual. As Watt J.A. held, however, that principle offers no solution in this case. In addition to setting the fee schedule, the Regulations provide that the fees are payable to “an authorized court transcriptionist”. This is exhaustively defined to mean “a member of a class of persons designated by the Attorney General to transcribe recordings.” To become a member of that class, an ACT must agree to comply with the requirements determined by the Attorney General, including the Manual, and the Manual necessarily implies that ACTs must use the Queen’s Printer for printing/binding appeal transcripts.

Watt J.A. struck a balance whereby the ACTs in this case could elect to deliver five certified copies with the printing/binding to be done by the Queen’s Printer, for which they would be paid $0.55 per page for one copy of the transcript. This amount for the first copy reflects the work that needed to go into reformatting and certifying the transcript for use on appeal. If the ACTs elected not to do this, they would be required to deliver an electronic copy to Court Services Division (for $20), which would then arrange for the transcript to be reformatted, printed/bound by the Queen’s Printer, and certified by another ACT for a cost of $0.55 per page for one copy. Failing these options, Watt J.A. directed that the appeal would proceed with a simple photocopy of the transcript.

Call for regulatory solution and interim steps

As the solution in C.G. was imperfect and designed to get on with these specific appeals, Watt J.A. called on the Ministry to solve the underlying problem in the inconsistent regulatory framework:

The creator of the inconsistency must be the author of the solution. MAG needs to fix the problem it created. For example, by drafting a regulation that contemplates or provides for the exception made in the Manual for certain types of transcripts. And by clearly defining in the Manual the obligations of an ACT when some or all of a transcript required for appeal purposes has already been prepared during the trial, as had been done in a prior edition of the Manual. Among the principles that should inform MAG’s solution are those that promote access to justice, and ensure fair compensation to ACTs commensurate with the work required to be performed in connection with the additional copies, and implement the mandate of Jordan.

In the meantime, the sort of dispute in C.G. may arise in the future. To minimize these disputes and the need for motions such as in C.G., Watt J.A. outline the following steps that are to be taken:

When an ACT receives an order during the trial to prepare a transcript of trial proceedings, but intends to charge $.55 per page per copy for appeal transcripts, the ACT should give specific notice to and secure the agreement of the ordering party to this effect before accepting the order. Failing such notice and agreement, the appeal copies will be prepared and bound by the Queen’s Printer at no charge to the ACT or the ordering party. If the ACT refuses to prepare an appeal transcript otherwise than for $.55 per page per copy, the ordering party is free to choose another ACT to prepare the transcript and any further copies necessary for appeal.

It also remains to be seen whether these interim steps will pre-emptively resolve disputes between appellants and ACTs regarding the fees payable. Although they may minimize disputes and avoid delayed appeals in some cases, the Ministry ought not delay in resolving the underlying problem.