



COURT OF APPEAL FOR ONTARIO

CITATION: Michail v. Ontario English Catholic Teachers
    Association, 2019 ONCA 319

DATE: 20190424

DOCKET: M49883 (C65674)

Rouleau, Miller and Fairburn JJ.A.

BETWEEN

Myriam Michail

Moving party

and

Ontario English Catholic Teachers Association,
    Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, and
    Sheila Brescia, London District Catholic School Board and Ontario Labour
    Relations Board

Respondents

Myriam Michail, in person

Christopher Perri, for the Ontario English Catholic
    Teachers Association

Aud Ranalli, for the Attorney General of Ontario

Liam Ledgerwood, for the London District Catholic School
    Board

Aaron Hart, for the Ontario Labour Relations Board

Heard: March 20, 2019

REASONS FOR DECISION

[1]

The central issue in this motion to review is whether parties in this
    court are entitled to obtain and disseminate audio recordings of proceedings in
    this court on their own terms. The answer is no.

Background

[2]

The moving party, Myriam Michail, is a former employee of the London
    District Catholic School Board. In 2010, she had a dispute with her former
    employer. The Ontario English Catholic Teachers Association (OECTA), her
    union, became involved on Ms. Michails behalf. Ms. Michail became dissatisfied
    with steps taken by the OECTA and filed an application with the Ontario Labour
    Relations Board (OLRB) complaining of unfair representation. That application
    was unsuccessful.

[3]

The course of proceedings since that time has been complex and irregular.
    An overview is provided in the reasons of this court dated October 25, 2018 and
    reported at 2018 ONCA 857. For the purposes of this motion, the following
    overview is sufficient. Ms. Michail brought an application for judicial review
    of the decisions of the OECTA and the OLRB before a single judge of the
    Superior Court, rather than the Divisional Court as would have been appropriate.
    Various procedural orders were made by the Superior Court in an attempt to
    regularize the process. Ms. Michail appealed those interlocutory orders to this
    court, and also brought a motion seeking, among other things, various
    exemptions from compliance with the
Rules of Civil Procedure
, R.R.0.
    1990, Reg. 194, in relation to the appeal. She was granted an extension of time
    to file her materials, but the balance of the motion was dismissed. The
    respondents then brought a motion to quash the appeal on the grounds that this
    court lacked jurisdiction over appeals from interlocutory orders of the
    Superior Court. That motion was successful and the appeal was quashed by this
    court, with reasons reported at 2018 ONCA 857.

[4]

Ms. Michail then brought another motion before a single judge of this
    court, seeking several orders chiefly related to the audio recordings from the
    hearings of the two earlier motions. She sought orders:

1. dispensing with the requirement that she sign a standard
    undertaking in order to obtain the release of audio recordings of the hearings
    of the motion of August 30, 2018, and the appeal of October 18, 2018;

2. permitting her to transcribe the proceedings;

3. directing the publication on the courts website of the
    reasons of Paciocco J.A. dated September 4, 2018; and

4. permitting her to challenge the constitutional validity and
    applicability of s. 136 of the
Courts of Justice Act,
R.S.O. 1990, c.
    C.43, specifically ss. 136(1)(a)(i), (b), (c), and 136(4).

[5]

That motion was heard in writing by Brown J.A. and dismissed, with
    reasons reported at 2018 ONCA 950, and is the subject of the present motion to
    review. Ms. Michail renews the arguments she made before the motion judge, and further
    argues that the motion judge erred in his holding on jurisdiction.
    Specifically, she argues that he erred in finding he did not have jurisdiction
    to grant the relief sought  an order exempting her from the requirement that
    she provide an undertaking not to publish the audio recordings  because there
    was no longer a live appeal before the court. She argued that if a judge of this
    court had no jurisdiction to consider her motion for an exemption from the
    practice direction regarding the use of electronic devices in court, then there
    would be no forum in which she could raise that issue.

[6]

Although we agree with Ms. Michail that the motion judge in fact had
    jurisdiction to decide her motion, the motion to review is nevertheless
    dismissed for reasons set out below.

Request to video record the hearing of the motion to review

[7]

At the outset of the hearing of this motion to review, Ms. Michail
    requested permission to video record the hearing of the motion and disseminate
    that recording. Ms. Michail took the position that the constitutional principle
    that proceedings of the courts be open to the public (the open courts
    principle) requires the court to permit video recording of its proceedings and
    dissemination of those recordings, subject to exceptions where justified.
    Accordingly, she argued, she was not required to provide any reason or
    justification for her request. In the alternative, she argued that video
    recording and publication was necessary in this instance as evidence of her
    experience in the court room. This is required, she argued, to keep judges and
    lawyers accountable to the public. She also argued that publication of the recording
    is necessary for public education.

[8]

We dismissed the request.

[9]

Video recording of proceedings in courts in Ontario are governed by s.
    136(1) of the
Courts of Justice Act
. Section 136(1) establishes a
    general prohibition against video recording, subject to exceptions provided in
    s. 136(3). That subsection provides that the general prohibition does not apply
    to a video recording made with the authorization of the judge. A judge is
    given statutory jurisdiction to authorize a video recording in three
    circumstances:

(a) where required for the presentation of evidence or the
    making of a record or for any other purpose of the court hearing;

(b) in connection with any investitive, naturalization, ceremonial
    or other similar proceeding; or

(c) with the consent of the parties and witnesses, for such
    educational or instructional purposes as the judge approves.

[10]

The
    moving partys principal submission was that she has a constitutional right to
    video record and disseminate the proceedings, subject to the court satisfying her
    that there is a compelling reason in the particular circumstance of this
    proceeding not to do so. As we understand it, the submission was not a
    constitutional challenge to s. 136, but rather grounded in the argument that
    all statutory grants of discretion must be exercised in accordance with the
    principles underlying the constitution. She argues that the open courts
    principle requires that video recording, streaming, and archiving be permitted.

[11]

We
    do not agree. The open courts principle is one constitutional principle among
    many and is not automatically dispositive. Judicial discretion in this
    instance, like all exercises of judicial discretion, must be exercised in a
    manner that conforms to the requirements of the rule of law:
Roncarelli v.
    Duplessis
, [1959] S.C.R. 121. This includes the requirement that the
    exercise not be arbitrary, and that it respect authoritative precedents and
    rules established in advance by other institutions. Judges have a wide
    discretion to authorize video recording under s. 136(3), but there must be some
    reason for it that relates to the circumstances of the particular case:
R.
    v. Dunstan
, 2017 ONCA 432, at para. 55. What the moving party is seeking
    is, in effect, to create a default authorization for video recording. This would
    be contrary to the
Act
. Proposals to amend the
Act
to allow
    video recording of hearings of motions and appeals, as the moving party pointed
    out, have been made from time to time. Whatever the merits of those proposals, they
    have not been adopted legislatively, and are not law.

[12]

In
    the alternative, the moving party also offered reasons for her demand. These
    were evidently framed so as to bring the demand within the exceptions in s.
    136(3)(a) and (c): that a video recording was required for the making of a
    record or for any other purpose of the court hearing, and for educational
    purposes.

[13]

With
    respect to educational purposes, she argued that it would benefit the people of
    Ontario generally, and those with an interest in labour law particularly, to be
    educated by viewing her arguing her motion to review the motion judges
    decision.

[14]

With
    respect to the making of a record or for any other purpose of the court
    hearing, she argued that a record of the proceedings was needed to document
    any abuse of process that might occur during the hearing.

[15]

In
    our view the moving party has not established that this is an appropriate case
    in which we should exercise the discretion provided by s. 136(3).

[16]

Courts
    have interpreted s. 136(3) as providing broad authority to authorize video
    recording where it facilitates the presentation of evidence or otherwise
    assists in the presentation of a partys case at trial:
Restoule v. Canada
    (Attorney General)
, 2018 ONSC 114, at para. 36;
Dunstan
, at para.
    52. In the unusual circumstances of
Restoule
, broadcasting and
    archiving of video recordings of the trial were permitted.  Unlike the present motion,
    which is at root a dispute between private parties with little if any broader
    significance, the issues in
Restoule
are public law disputes of great
    public significance  the interpretation of treaties signed in 1850, and Crown
    liability flowing from them. It was anticipated that the evidence to be
    presented would be significant:

The evidence already collected in the expert reports of the
    witnesses may be the best curated collection of the history of the events
    leading up to these treaties ever assembled. In addition, the evidence from
    Elders, Chiefs, and ethno-historians on the lives, culture and beliefs of the
    Great Lakes Anishinaabe constitutes a major collection in itself.

[17]

Most
    significantly, many of the treaty beneficiaries reside in remote and isolated
    communities spread out over a vast area of land. The extraordinary step of
    holding the proceedings in four separate communities was itself determined not
    to be an adequate response to the problem of lack of access to the proceedings
    for those affected. Accordingly, the motion judge in
Restoule
determined
    that live stream broadcasting and archiving of the proceedings was necessary
    for providing a process that is perceived to be fair by the parties, coming
    within the discretion provided by s. 136(3)(a) to grant an order for any other
    purpose of the court hearing.

[18]

The
    moving partys motion has nothing in common with
Restoule
. An idiosyncratic
    and unsubstantiated distrust in the legal system does not generate an
    entitlement to create a video record of proceedings on demand under s.
    136(3)(a). This court is not a court of record, and it is not clear what record
    the moving party wished to create. Unlike in
Restoule
, her appeal has
    been quashed and there is no proceeding in existence. And unlike in
Restoule
,
    the purpose for which she seeks a video recording is unrelated to the substance
    of the hearing itself.

[19]

The
    argument that a video recording was sought for public education purposes under
    the exception set out in s. 136(3)(c) likewise fails. The moving partys
    argument rests on reading education as encompassing the generation and
    dissemination of any piece of information. This is too broad a reading. The moving
    party is not engaged in education or instruction in the sense intended by the
    statute.

The motion to review the motion judges decision

[20]

This
    court makes digital audio recordings of its proceedings for internal use. These
    recordings are not governed by s. 136, which addresses the actions of third
    parties in making recordings. This court makes these recordings pursuant to its
    inherent power to govern its own process. As set out in s. 17 of the
Practice
    Direction Concerning Civil Appeals at the Court of Appeal for Ontario
, the
    court makes the recordings available to the parties upon request, for personal
    use only, and on the condition that the person requesting the recording sign an
    undertaking agreeing to respect the limits on the permitted uses of the
    recording.

[21]

Section
    17 of the
Practice Direction
prohibits dissemination of the digital
    audio recording, but also provides that the prohibition is subject to a court
    order to the contrary. In our view, the
Practice Direction
allows for
    an application to be made to a single justice of this court, for an order
    dispensing with the requirement that the digital audio recording not be
    disseminated. The moving partys motion was therefore properly before the
    motion judge. However, for the reasons given above with respect to the video
    recording, the motion is properly dismissed. The moving party did not provide
    any reason that would justify releasing her from the obligation not to
    disseminate.

[22]

The
    motion judge made no error in dismissing the motion for an order that certain
    reasons for decision be posted to the courts website. As the motion judge noted,
    it is left to the individual motion judge to decide whether or not to publish
    his or her reasons on the courts website. The operational decisions of this
    court are not subject to review.

[23]

With
    respect to the proposed challenge to the constitutional validity of the s. 136
    of the
Courts of Justice Act
, the motion judge made no error in
    dismissing the motion for lack of jurisdiction. A constitutional challenge to a
    statute cannot be brought in this court in the absence of a valid appeal. As
    the appeal had been quashed, the motion judge made no error in dismissing the
    motion.

DISPOSITION

[24]

The
    motion is dismissed. Costs are awarded to the respondent London District
    Catholic School Board in the amount of $1,000 inclusive of disbursements and
    HST.

Paul Rouleau J.A.

B.W. Miller J.A.

Fairburn J.A.


