



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
    no person shall publish the name of a young person, or any other information
    related to a young person, if it would identify the young person as a young
    person dealt with under this Act.

(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
    no person shall publish the name of a child or young person, or any other
    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
    records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section
    129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not
    to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent
    disclosure by school) or (1.15) (information to be kept separate), 45(2)
    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable
    on summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.G., 2018 ONCA 751

DATE: 20180913

DOCKET: M49100 (C64190) & M49101 (C64708)

Watt J.A. (In Chambers)

BETWEEN

M49100 (C64190)

Her Majesty the Queen

Respondent

and

C.G.

Appellant

AND BETWEEN

M49101 (C64708)

Her Majesty the Queen

Respondent

and

Robert Roszmann

Appellant

Howard L. Krongold, for the appellant C.G.

Richard Litkowski, for the appellant Robert Roszmann

Benita Wassenaar, for the respondent

Clifford Lax Q.C., for the interveners Diane Johnson,
    Lynne Johnson, Shelley Smith and Judith Smith

J. Stanley Jenkins, for the intervener Legal Aid Ontario

Rina M. Li, for the intervener Court Services Division

Mark Halfyard, for the intervener Criminal Lawyers
    Association of Ontario

Heard: May 7, 2018

REASONS FOR DECISION

[1]

C.G. and Robert Roszmann have three things in common. Convictions of
    criminal offences. Appeals against those convictions. And no means to challenge
    those convictions. They have no means to challenge those convictions because
    they have no transcript of their trials. None for them. None for the Crown. And
    none for this court.

[2]

C.G. and Robert Roszmann have no transcripts of their trials for the
    same reason. And that is because each is involved in a dispute. And that
    dispute is with the authorized court transcriptionists each has asked to
    prepare and deliver the transcripts of their respective trials. And that
    dispute is about the fees and associated costs the authorized court transcriptionists
    are entitled to charge and be paid for the completion and delivery of those
    transcripts for the appeals to be heard in this court.

[3]

C.G. and Robert Roszmann seek directions about these fees. They ask me,
    as the judge assigned to manage the perfection of their appeals, to provide
    those directions. What follows are those directions and the reasons for them.

THE BACKGROUND FACTS

[4]

A convenient place to begin is with a brief snapshot of the origin of
    the dispute between C.G. and Robert Roszmann (the appellants), and the
    authorized court transcriptionists (the ACTs).

The Trial Proceedings and Transcript Orders

[5]

C.G. is a young person. He is represented by privately-retained counsel.
    His trial lasted about 32 days. During the course of that trial, about 20 days
    of evidence was transcribed by four ACTs who are interveners on this motion.
    The rate charged and paid per page of transcript was $4.30.

[6]

As an appellant, C.G. is required to obtain five copies of the
    transcripts: three for this court, and one each for himself and the Crown
    respondent. The dispute between the appellant and the ACTs has to do with the
    fee per page for appeal copies of the transcript already prepared and paid for
    at trial and, to some extent at least, who prints and binds that copy.

[7]

Robert Roszmann retained appellate counsel by application to Legal Aid
    Ontario (LAO). Counsel ordered the transcripts from an ACT who advised him
    that all of the dates on which trial proceedings had been held  except for one
     had already been transcribed and produced by another ACT to whom the transcript
    order should be sent.

[8]

When appellate counsel ordered the transcript from the other ACT, he was
    advised of her rates. She also said that she did not use the Queens Printer to
    produce additional copies of the transcript. This response was at odds with the
    LAO guidelines and regulations for the preparation of transcripts for an
    appeal. Disagreements developed between the counsel and the ACT on a number of
    issues. Despite a narrowing of the issues to whether LAO would pay the
    transcriptionist for creating new Title and Table of Contents pages and whether
    it would reimburse her for the costs of couriering transcripts, the ACT
    declined the transcript request order.

[9]

To better understand the root and nature of the current stalemate, it is
    helpful to set out the requirements for records of court proceedings and for
    the preparation and certification of transcripts for the purposes of appellate
    review of the conduct of those proceedings.

The Requirement of a Record of Trial Proceedings

[10]

The
Criminal
    Code
contains several provisions which require courts to maintain a record
    of their proceedings, including the evidence given in those proceedings. In
    preliminary inquires: s. 540(1). In trials before a provincial court judge: s.
    557. In trials before a judge of the superior court of criminal jurisdiction
    sitting without a jury under Part XIX: s. 572. And in trials by jury: s. 646.

The Requirement of Transcripts for the Court of Appeal

[11]

Section
    682(2) of the
Criminal Code
requires that a copy or transcript of the
    evidence, charge to the jury, reasons for judgment and the addresses of counsel
    is to be furnished to the court of appeal unless a judge of that court orders
    otherwise. Under s. 682(4), a party to an appeal is entitled to a copy or
    transcript of any material prepared for the court under s. 682(2) on payment
    of any charges that are fixed by rules of court.

[12]

The
    authority of courts of appeal to make rules relating to appeals or matters
    arising from or incidental to appeals is conferred by s. 482(1) of the
Criminal
    Code
. Among other subjects, the rules of court may include provisions for
    ensuring the accuracy of notes taken at trial and the verification of any copy
    or transcript: s. 482(3)(d)(ii).

[13]

Pursuant
    to authority provided under s. 482(1), the
Ontario Court of Appeal

Criminal
    Appeal Rules
, SI/93-169,

require in r. 8(4) that three copies of
    the transcript be provided for the use of the court, except where otherwise
    ordered. Rule 8(16) imposes two obligations on the court reporter who
    prepared the transcript. On completion of the transcript, the reporter is to
    notify the Registrar and parties that the transcript has been completed. And
    upon payment for the completed transcript, the reporter is to deliver the transcript
    copies for use of the court to the Registrar.

[14]

Neither
    the
Criminal Code
nor the
Ontario Court of Appeal

Criminal
    Appeal Rules
contains any provision that prescribes the fees payable for
    production of transcripts for use on appeals to this court.

Transcript Production

The Pre-June 9, 2014 Regime

[15]

From
    January 1, 1990 until June 9, 2014, court reporters and court monitors were Ministry
    of the Attorney General (MAG) employees. When a transcript was ordered for
    appeal or other purposes, that transcript was prepared and certified by the court
    reporter or court monitor who was in court, maintaining the record of those
    proceedings. Once the transcript was ordered, it was the responsibility of the
    court reporter or court monitor to prepare and certify the transcript. This
    responsibility could not be delegated to another court reporter or monitor
    without MAG approval. It was also the responsibility of the reporter or monitor
    to certify each copy of the transcript.

[16]

The fees
    for court transcripts were those that appeared in s.3 of O. Reg. 587/91
    entitled
Court Reporters and Court Monitors
. Item 1 in the section
    prescribes the fee payable for a single copy of a transcript of evidence for
    the purpose of reproduction in an appeal to the Court of Appeal as $3.75 per
    page. Item 1 makes no reference to fees for additional copies of transcripts
    for reproduction in appeals to the Court of Appeal. This is so because, as s. 6.1.1
    of the
Court Transcript Standards and Procedures Manual
produced by
    MAG explains, MAG produces the copies required for appeal purposes at no cost
    to the parties or to the court reporter or monitor. These copies are printed
    and bound by the Queens Printer.

[17]

Item 2 in
    s. 3 of O. Reg. 587/91 applies to transcripts other than those under item 1,
    that is to say, transcripts other than those for reproduction in appeals or for
    use in an appeal book. The first copy rate is $3.20 per page with each
    additional copy $.55 per page.

[18]

It is
    uncontroversial that under this old regime court reporters and monitors
    submitted their first certified copy of the transcript to the Queens Printer
    for printing additional copies and binding. These copies were filed with the
    court for its use and provided to counsel for their use. This, despite the fact
    that the governing regulation did not mention the production of copies at all.
    There is no evidence in the record about anyone other than the Queens Printer
    copying or binding the transcripts for use on appeal or charging a copy rate
    per page of transcript beyond the first certified copy.

The Current System

[19]

About a year
    prior to its commencement on June 9, 2014, the Attorney General announced plans
    to introduce a new model for recording trial proceedings and preparing
    transcripts of those proceedings. No more court reporters or court monitors who
    were MAG employees. In their place, independent contractors, to be known as
    authorized court transcriptionists or ACTs.

MAG and Arkley

[20]

To create
    a pool of qualified ACTs, MAG retained Arkley Professional Services (Arkley)
    to set up and maintain a registry of persons who could be ACTs. The registry was
    created by Arkley, whose task according to their fixed-term agreement with MAG
    is to administer and maintain it.

The ACT and Arkley

[21]

Any qualified
    individual who wishes to become an ACT applies to Arkley for inclusion in the
    registry. This requires the applicant to sign a
Transcriptionist
    Registration and Website Agreement
. The applicant agrees to comply with
    the terms of the agreement and with the Conditions of Authorization as
    prescribed from time to time or at any time by the Attorney General. The applicant
    also agrees to charge no more for transcripts than the rates authorized in O.
    Reg. 94/14, discussed below.

Ordering a Transcript

[22]

Anyone who
    wishes to order a transcript of court proceedings must order it from an ACT  any
    ACT. All aspects of the order, including the availability of the ACT to prepare
    the transcript within any applicable time period, as well as terms of payment for
    and delivery of the transcript, are to be settled between the ordering party
    and the ACT. Only an ACT may prepare and certify a transcript, irrespective of
    the use proposed or planned for that transcript.

O. Reg. 94/14

[23]

Effective
    June 9, 2014, O. Reg. 94/14 repealed O. Reg. 587/91. The new regulation, under
    the title,
Fees for Court Transcripts
, sets the fees payable to an
    authorized court transcriptionist, exhaustively defined in s. 1 of the regulation
    to mean a member of a class of persons authorized by the Attorney General to
    transcribe recordings of a court proceeding or evidence in a court proceeding.

[24]

Under O.
    Reg. 94/14, the fee payable [t]o transcribe all or part of a recording and
    produce a first certified copy of a transcript is $4.30 per page or $20.00,
    whichever is greater and [f]or any additional certified copy of the
    transcript in printed format it is $.55 per page or $20.00, whichever is
    greater.

The Court Transcript Standards and Procedures
    Manual

[25]

By its
    terms, this Manual is the authoritative reference for transcript standards and
    procedures for Ontario courts. All ACTs must comply with the standards and
    procedures as set out in this Manual.

[26]

Among the
    provisions of the manual are these:

3.1.1 Couriering Audio Recordings and Related
    Transcription Materials to ACTs

The Superior Court of Justice and the Ontario Court
    of Justice have advised they will permit digital court recording files to be
    sent to the Authorized Court Transcriptionist (ACT) via courier on an encrypted
    CD.

The ACT must use a
bonded
courier
    company and must explicitly identify the name of the bonded courier company
    that will be responsible for pick-up and delivery of the encrypted CD. The ACT
    should provide this information in an email to recording management staff.
    Courier services must be paid for by the ACT.



3.6 Printing/Reproducing and Binding
    Transcripts for the Court of Appeal for Ontario



Unless the transcript is for the purpose of appeal to
    the Court of Appeal for Ontario or the Divisional Court, it is the
    responsibility of the ACT to have the transcript reproduced and bound. The
    number of copies required will be indicated on the transcript order.

3.8.7 Reproducing Transcripts for the Court
    of Appeal for Ontario and Divisional Court

An electronic copy of a transcript requiring
    reproduction must be accompanied by a Print Requisition (Court Transcripts)
    form available from the Authorized Court Transcriptionists for Ontario website.

Once the sections are completed as required by the
    ACT on the Print Requisition (Court Transcripts) form, the electronic
    transcript and the Print Requisition (Court Transcripts) form must be
    electronically forwarded to the designated staff person at the court site for
    processing.

Printing services will be authorized by the Manager
    or Supervisor of Court Operations and the transcript and a copy of the
    authorized requisition will be forwarded to Ontario Shared Services, Printing
    Services, for photocopying and binding.

The printed transcripts will be delivered from
    Printing Services directly to the ACT at the address provided on the form when
    printing and binding of the transcripts is complete. Printing Services will
    chargeback the cost of couriering to Court Services Division.



6.1 Transcript
    Fees

ACTs are entitled to fees for transcripts as set out in
    Ontario Regulation 94/14 under the
Administration of Justice Act.
The
    current fees became effective on May 1, 2014.

This court transcript fee schedule applies to
    transcript orders placed on or after May 1, 2014.



Item

Service

Fee



1.

To transcribe all or part
          of a recording and produce a first certified copy of a transcript

$4.30 per page or $20.00, whichever
          is greater



2.

To transcribe all or part
          of a recording and produce a first certified copy of a transcript, to be
          provided within five business days

$6.00 per page or $20.00,
          whichever is greater



3.

To transcribe all or part
          of a recording and produce a first certified copy of a transcript, to be
          provided within 24 hours

$8.00 per page or $20.00,
          whichever is greater



4.

For any additional
          certified copy of the transcript, in printed format Note: For copies required
          for appeals to the Court of Appeal for Ontario and Division Court, see Sec.
          6.1.1 below

$.55 per page or $20.00,
          whichever is greater



5.

For an electronic copy of
          the transcript, requested at the same time as a request for item 1, 2, 3 or 4

No charge



6.

For an electronic copy of
          the transcript, requested at any other time

$20.00



6.1.1 Court of Appeal for Ontario and
    Divisional Court Transcripts

In accordance with the transcript fees outlined in
O.
    Reg. 94/14
, ordering parties are charged $4.30 per page for the first
    certified copy of the transcript. 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.

6.2.4 Invoicing and Distribution of Criminal
    Appeals to the Court of Appeal for Ontario



Note:
Ordering parties may arrange
    to pick up and file copies of the transcripts
for use of the court
with the Court of Appeal. They are responsible for distribution of the
    remaining copies. [Emphasis in original]

[27]

The
    Attorney General has issued her approval and authorization under s. 5 of the
Evidence
    Act
, RSO 1990, c. E. 23 and O. Reg. 158/03 at the conclusion of the
    Manual.

This Motion

[28]

On this
    motion for directions, the appellants seek an order determining the fees
    payable to ACTs for copies of transcripts required for appeals to this court.
    In both cases the original transcripts have already been prepared and paid for
    at the rate of $4.30 per page at trial. A secondary or subsidiary issue also
    arises concerning whether the ACT is
required
to have the printing of
    additional copies done by the Queens Printer at no cost to the ACT or parties,
    or is free to make other arrangements which may entail additional costs.

[29]

The
    parties to the motion are the appellants and respondent Crown represented by
    the Crown Law Office  Criminal. Several interveners also participated:

i.

the ACTs involved in C.G.s appeal;

ii.

Court Services Division of the Ministry of the Attorney General (CSD),
    represented by Crown Law Office  Civil; and

iii.

the Criminal Lawyers Association of Ontario (CLA).

LAO also appeared but, unlike the parties and
    interveners, did not file a factum or participate in oral argument.

The Positions of the Parties and Interveners

[30]

With this
    background, I turn next to the positions advanced in the written materials
    filed and oral arguments presented by the parties and interveners.

The Position of the Appellants

[31]

For C.G.,
    the dispute is about the fees ACTs are entitled to charge for additional copies
    of transcripts already prepared and paid for at trial. C.G. acknowledges at the
    outset the importance of the work of ACTs to the administration of justice and
    their entitlement to fair compensation for the vital work they perform. But in
    determining that entitlement to fair compensation, we must always keep in mind considerations
    of access to justice.

[32]

C.G. also
    accepts that the preparation and certification of copies of transcripts for
    appeal purposes entails some additional work for ACTs. But the nature and
    extent of that work is not such that it should be compensated at the rate of
    $.55 per page per copy as the ACTs contend. It is especially so when the duplicating
    and binding is done, as it must be, by the Queens Printer at no cost to the
    ACT or to the parties.

[33]

On its
    face, C.G. concedes, O. Reg. 94/14 sets the fees payable for
additional
    certified copies
of transcripts at $.55 per page. Unlike its predecessor, O.
    Reg. 587/91, the current regulation does not distinguish between transcripts
    prepared for appeals to the Court of Appeal and other transcripts. But, C.G.
    continues, the regulation does not tell the whole story. Consideration must
    also be given to the Manual, the authoritative reference for transcript
    standards and procedures for Ontario courts. Every ACT must comply with the
    Manual. And the Manual makes it clear that the fee for the first certified
    copy, of which there can only be one, is $4.30 per page. The balance of the
    copies necessary for appeal purposes are to be printed by the Ministry. And
    this at no cost to the ACT or the ordering party.

[34]

C.G.
    points out that O. Reg. 94/14 equates the fees exigible for transcripts
    irrespective of whether they are being prepared for appeals or otherwise. The
    extra work is compensated by the enhanced initial rate, which is the sum of the
    former rate for transcripts for the Court of Appeal and the copy rate for
    non-Court of Appeal transcripts. In the result, C.G. says, the copies should be
    turned over for filing
at no additional cost
.

[35]

Robert
    Roszmann adopts the submissions of C.G. He agrees that any proceedings not yet
    transcribed are chargeable at the rate of $4.30 per page. Thereafter, only the
    second certified copy should be paid for, according to the practice of LAO, at
    $.55 per page, even though the Manual indicates otherwise. The courier costs
    should be the responsibility of the ACT.

The Position of the Respondent Crown

[36]

The
    respondent Crown makes no submissions about the fees payable for transcript
    production in either appeal. The Crown asks that the decision take into account
    the need for appeals to proceed expeditiously; the importance of accuracy in
    the transcripts used to review the conduct of trial proceedings; and the
    importance of ensuring that LAO has sufficient resources to fund appellate
    counsel in appropriate cases.

[37]

The
    respondent also asks that the issue be resolved in a way that avoids future
    disputes and assists the parties in meeting their heightened obligations under
R.
    v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.

The Position of the Intervener: Court Services
    Division

[38]

Court
    Services Division of the Ministry of the Attorney General (CSD) takes no
    position on the orders requested, preferring instead to make submissions about
    the background and context in which the current scheme of transcript
    preparation came to be and how it operates.

[39]

CSD says
    that copy fees set out in O. Reg. 94/14 have
no
application to
    transcripts printed and bound by the Queens Printer for use in the Court of
    Appeal. The expectation from the regulation is that ACTs will use the Queens
    Printer for production of the additional copies, then certify those copies but
not
charge $.55 per page per copy for having done so. The printing and binding of
    additional copies of transcripts for use in appeals is done by the Queens
    Printer at no cost to the ACT or to the parties.

[40]

CSD takes
    the position that to determine the issue raised, it is necessary to look beyond
    O. Reg. 94/14 and consider not only the Manual, but also the
Transcriptionists
    Registration and Website Agreement
each ACT signs with Arkley. Section
    6.1.1 of the Manual makes it clear that the fee payable for the first certified
    copy is $4.30 per page and that additional copies for appellate use are
    produced by the Queens Printer at no cost to the ACT or to the parties. In
    addition, in their agreement with Arkley, each ACT agrees to adhere to all
    posted policies, rules and other directions associated with transcript
    production. This includes, as the LAO website confirms, the production of
    copies by the Queens Printer at no cost to the ACT or to the parties.

[41]

CSD points
    out that, for over four decades, the Queens Printer has printed and bound
    copies of transcripts for appellate use. Printing is now done from an
    electronic copy sent by the ACT, who receives by courier the printed and bound
    hard copies of the transcripts from the Queens Printer at no cost. The
    rationale that underlies this regime is that it reduces costs to the parties,
    adds no cost to the ACTs, and provides access to justice for the litigants.

[42]

CSD agrees
    that ACTs are independent contractors. It follows, says CSD somewhat
    inconsistently, that ACTs are
not
required to use the services of the
    Queens Printer for printing and binding transcripts for use in the Ontario Court
    of Appeal. Whether they do so is a business decision for each ACT to make. If
    the ordering party insists on use of the Queens Printer for the printing and
    binding of the necessary copies and the ACT, for business reasons, chooses not
    use the services of the Queens Printer, the ACT is free to refuse the order
    for provision of the transcript.

The Position of the Intervener: Criminal Lawyers
    Association of Ontario

[43]

The CLA
    says that concerns about access to justice should be a critical factor in
    determining the fees exigible for copies of transcripts prepared for appellate
    use. Accessible justice includes the ability to meaningfully exercise rights of
    appeal. Transcript costs can be significant when appeals are taken. But those
    costs must not be so burdensome as to render rights of appeal more illusory
    than real.

[44]

In
    deciding whether the copy rate applies to transcripts already produced and paid
    for during trial proceedings, or whether no additional fee is payable for
    additional copies required for appeal, the CLA points out that the no cost
    interpretation is not without precedent. For example, in summary conviction and
    extraordinary remedy appeals to this court, as well as in motions for leave to
    appeal and appeals to the Supreme Court of Canada, any additional copies are
    simply copied from the materials already filed. No additional copies are
    ordered from the transcriptionist. Further, no fee is payable for electronic
    copies of the first certified copy. These are filed with this court and differ
    from printed copies in only one respect: they lack the transcriptionists
    signature on the certification.

[45]

The CLA
    takes issue with the positions advanced by CSD and the ACTs in connection with
    the use of the Queens Printer to print and bind the copies necessary for
    appeal purposes. ACTs are not, the CLA says, entirely independent contractors.
    They are members of a regulated profession. The fees payable for transcript
    preparation are determined by the combined operation of O. Reg. 94/14, the
    rules of court, and the manual. They are
required
to send an
    electronic copy of the transcript to either the Queens Printer or the ordering
    party for printing and binding.

The Position of the Intervener: Authorized Court
    Transcriptionists

[46]

The ACTs
    confine their submissions specifcially to the appeal of C.G. since they are the
    transcriptionists who prepared the certified transcripts in his case. ACTs,
    they say, are independent contractors. They are under no obligation to work for
    little or no payment. They are entitled to be paid in accordance with the
    unambiguous terms of O. Reg. 94/14 and the rules of the Court of Appeal for
    Ontario. The certification process involves much more than simply affixing a
    signature to the final page of the transcript. It involves several steps and
    ensures the accuracy and completeness of the transcript.

[47]

The ACTs
    say that the policy decision of LAO conflates the process of printing and
    binding by the Queens Printer with all the work required in producing a
    certified transcript. The Queens Printer simply prints and binds. Only the ACT
    certifies the accuracy and completeness of the transcript.

[48]

The fees
    payable to ACTs are fixed by O. Reg. 94/14 at $4.30 per page for the first
    certified copy and $.55 per page for
any additional certified copy
. In
    the case of C.G., the transcripts had been previously ordered and paid for
    during the trial proceedings. This constituted the first certified copy. For
    the additional certified copies required for appeal purposes, the ACTs are
    entitled to be paid $.55 per page. This represents the fee payable under O.
    Reg. 94/14.

[49]

The ACTs
    point out that the policy of LAO, which contemplates payment for only
one
certified copy at $.55 per page, contravenes the
Criminal Appeal Rules
of this court. Those rules require
three
copies for the court and
    copies for counsel. To accept the position adopted by LAO would result in a
    single certified copy of the transcript. The remaining copies would be
    photocopies, not certified by the ACT, thus providing no guarantee of their
    accuracy or completeness. Self-represented litigants would get a copy of the
    digital recording and commit it to paper by the use of a word processor.

[50]

The ACTs
    say that O. Reg. 94/14 applies to everyone who orders or pays for a transcript
    of trial proceedings for any purpose, including appeals to this court. It
    applies to parties to the proceeding, to LAO, and to the Attorney General. The
    fees prescribed are invariable. In C.G.s case they entitle the ACTs to be paid
    $.55 per page for every certified copy beyond the first certified copy.

Analysis

[51]

This
    motion seeks a resolution of a stalemate for which there is neither a
    principled nor an ideal solution.

[52]

In large
    measure, this stalemate results from an inconsistency. And that inconsistency
    is between O. Reg. 94/14, which establishes the fees for transcripts prepared
    by ACTs, and the
Court Transcript Standards and Procedures Manual
, the
    authoritative reference for transcript standards and procedures in this
    province with which all ACTs must comply.

[53]

Read on
    its own, O. Reg. 94/14 requires payment of $.55 per page for any additional
    certified copy of the transcript in printed format. It says nothing about any exception
    for appeal transcripts and certainly does not provide that they should be
    produced at no cost to their ACT creators or to the parties to an appeal in
    which the transcripts are required by this court.

[54]

Read on
    its own, the Manual requires use of the Queens Printer to prepare, bind and
    make available for distribution the copies of transcripts necessary for the
    parties and Court of Appeal without cost to the ACTs or to the parties. The
    Manual says nothing about instances, as here, where the proceedings have been
    previously transcribed.

[55]

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 MAGs 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
.

[56]

In search
    of a solution, I begin by examining the positions advanced by the parties and
    interveners to determine whether they are supported in whole or in part by the
    regulation, Manual, agreement or some combination of them.

The Position of C.G.

[57]

Reduced to
    its simplest terms, the position of C.G., supported to some extent by Roszmann,
    is that the copies of previously certified transcripts necessary for appeal
    purposes are to be reformatted if necessary by the ACT, sent to the Queens
    Printer for printing and binding, and returned to the ACT for certification at
    no extra cost to the appellant.

[58]

This
    submission is rooted in the compulsory wording in the Manual. It pays no heed
    to the language in O. Reg. 94/14 which, on its face, does
not
distinguish between appeal and other transcripts as did its predecessor, O.
    Reg. 587/91. As a matter of statutory interpretation, it is difficult to
    understand recourse to the Manual to circumvent or nullify a regulation which
    is unambiguous on its face. The regulation clearly contemplates no exception
    for appeal transcripts.

[59]

Inherent
    in this submission is also an element of unfairness. For it would compel ACTs
    to undertake the work required to turn what might be termed a trial
    transcript into a copy compliant with this courts requirement for appeal
    purposes, including any necessary reformatting, submit it to the Queens
    Printer and certify the copies, without compensation beyond the fees received
    for the first certified copy of the transcript. This seems unfair.

The LAO/Roszmann Position

[60]

According
    to this submission, the ordering party would pay $.55 per page for the first
    copy of the previously certified transcript for portions not requiring
    substantive changes and $4.30 per page for those requiring substantive changes.
    Any additional copies are free.

[61]

The $.55
    per page for the first appeal copy will compensate ACTs for the work involved
    in reformatting, sending the file to the Queens Printer for printing and
    binding, and certifying the copies on their return.

[62]

This
    position has two advantages: practicality and (apparent) fairness. That said,
    this solution can be uneven in that the cost to ACTs in terms of time spent
    relating to the production of these copies is generally fixed, not dependent on
    the length of the transcript, yet the compensation is based on the number of
    pages.

[63]

But
    despite its practicality and apparent fairness, the position is problematic.
    Neither O. Reg. 94/14 nor the Manual distinguishes between the first
    additional copy and all other additional copies. The distinction cannot be
    justified on any principled basis. And as we have seen, it compensates on the
    basis of the number of pages rather than fixed costs.

The ACT/CSD Position

[64]

According
    to this submission, when an ACT is taking an order for transcripts for appeal
    purposes, the ACT can choose to produce the copies himself or herself and
    charge $.55 per copy per page or have the Queens Printer produce the copies at
    no charge. Absent an agreement with the ordering party about the charge per
    page for copies, the ACT may refuse any order, including an order for a
    transcript the ACT has previously transcribed and been compensated for at the
    first certified copy rate.

[65]

Significant
    problems arise in connection with this position.

[66]

First, the
    proposed choice of options for the ACT is inconsistent with the setting of fees
    by the regulation. Through the regulation and its Manual, MAG has set the fee
    for transcripts, including copies of transcripts. It is inherently inconsistent
    with this regime for ACTs to be free to choose whether a party must pay $.55
    per page per copy or receive that copy for free. This is especially so when
    neither the regulation nor the Manual explicitly recognize this power of choice
    for the ACT.

[67]

Second,
    the information available to ordering parties about the options for appeal
    transcripts does not provide fair notice to ordering parties about the
    options. The issue is neither raised nor explained on the Arkley website for
    the benefit of ordering parties. Review of the Manual compels the conclusion
    that the ACT is required to provide the copies at no cost to the ordering
    party.

[68]

Third,
    this position permits an ACT to hold previously prepared transcripts hostage.
    The ordering party would be completely at the mercy of the ACT who prepared the
    trial transcript. The ACT would be free to refuse to use the Queens Printer
    and insist upon payment of $.55 per page per copy of the transcript. The
    ordering partys options would be to pay the $.55 per page per copy or retain
    another ACT to prepare another transcript at $4.30 per page. Although the required
    ACT undertaking includes an obligation to advise the ordering party whether the
    proceedings have been previously transcribed by another ACT, it says nothing
    about any obligations on the part of the other ACT. And this includes whether
    the original ACT may refuse a subsequent order relating to the transcript
    unless the ordering party agrees to the ACTs terms for payment for copies.

The Imperfect Compromise

[69]

The
    conclusion I have reached, I confess, is an imperfect compromise. It is made
    necessary by the facial inconsistency between the fee-setting regulation and
    the Manual. Prior to June 9, 2014 there was congruity between the operative regulation,
    O. Reg. 587/91, and the Manual. Not so anymore.

[70]

On its
    own, the unambiguous language of O. Reg. 94/14 would entitle an ACT to fees of
    $.55 per page for
each
copy of the transcript beyond the first
    certified copy. The Regulation pays no heed to the purpose of the transcript,
    whether for use on appeal or otherwise. And while it may be so as a matter of
    statutory construction that a regulation, especially one cast in unambiguous
    terms as in O. Reg. 94/14, ought to prevail over agreements and manuals, to do
    so here would be to fail to acknowledge that transcript production involves
    much more than setting fees for the completed product.

[71]

To explain
    why it is that the conclusion I have reached involves consideration of more
    than the fee schedule set by O. Reg. 94/14, it is helpful to consider the
    object of the various moving parts of the regime put in place on June 9, 2014.

[72]

First, O. Reg.
    94/14. The purpose or object of this regulation is clear from the heading that
    accompanies it:
Fees for Court Transcripts
. It tells those who want
    transcripts of court proceedings, as well as those who are asked and entitled
    to prepare them,
how much
the purchaser will pay and the supplier will
    charge for those transcripts. In other words, it answers the question how
    much?

[73]

But O. Reg.
    94/14 does more than simply set the fees. It also tells us
to whom
the
    fees are payable  an authorized court transcriptionist. And it defines the
    term authorized court transcriptionist exhaustively to mean a member of a
    class of persons designated by the Attorney General to transcribe recordings.

[74]

To
    determine who is an ACT requires us to look beyond the regulation. Becoming an
    ACT allows a person to access recordings, prepare transcripts, and charge the
    fees payable under O. Reg. 94/14. To do so, a person must enter into a
Transcriptionist
    Registration and Website Agreement
with Arkley, the independent service
    provider with whom the Attorney General has entered into an agreement to
    operate a registry and related website for ACTs.

[75]

In their
    agreement with Arkley, each ACT agrees to comply with the requirements of the
    agreement, as well as with the Conditions of Authorization included in the
    agreement and any other requirements as set from time to time by the Attorney
    General of Ontario under subsection 4(2) of the Ontario Regulation 158/03 under
    the
Evidence Act
.

[76]

ACTs are
    required to comply with the standards and procedures set out in the Manual, which
    is the authoritative reference for transcript standards and procedures in
    Ontario courts. On April 8, 2014, the Attorney General of Ontario attached her
    Approval and Authorization under s. 5 of the
Evidence Act
and O. Reg.
    158/03 to the Manual. This Authorization and Approval had the effect of
    incorporating the Manual as a Condition of Authorization in the
Transcriptionist
    Registration and Website Agreement.

[77]

Under
    6.1.1 of the Manual, MAG is
required
to print copies of court
    transcripts required for the Court of Appeal for Ontario at no cost to the ACT
    or the ordering party. The imposition of this obligation on the Ministry
    necessarily implies that the ACT is to use this procedure for reproduction of
    appeal transcripts.

[78]

Doubtless
    some work beyond mere certification is required of an ACT when printed and
    bound copies prepared for appeal purposes are returned to the ACT from the
    Queens Printer. There is no evidence of any systematic checking to ensure
    completeness by the Queens Printer after printing and binding has been
    completed. This would seem to fall to the ACT. And for that the ACT should be
    compensated fairly.

[79]

This
    impasse between the ordering party (who requires the transcript) and the ACT
    who fulfilled the initial order (and who has the transcript but cannot be
    compelled to accept an order for the additional copies) requires the court to
    exercise its authority over the court record. In such circumstances, the order
    issued must endeavour to balance, as best it can, the interests of access to
    justice with the right of the ACT to fair compensation for work actually done
    in relation to the additional copies. And at the same time, it must keep a
    weather eye on the teachings of
Jordan
.

DISPOSITION

[80]

In these
    circumstances, my directions are these:

i.

The ACTs may produce and deliver five certified copies of the
    transcripts within 30 days with printing and binding done by the Queens
    Printer, for which they will be paid a fee of $.55 per page for one copy of the
    transcript;

ii.

If the ACTs fail or refuse to produce the transcripts as described in
    paragraph i., they shall deliver an electronic copy of the transcript to CSD,
    in an electronic format acceptable to CSD, for which they shall be paid $20 by
    CSD;

iii.

In that case, CSD shall arrange for the transcript to be reformatted if
    necessary, printed and bound by the Queens Printer, and certified by another
    ACT at a cost of $.55 per page for one copy, payable by the appellants to CSD;
    and

iv.

If CSD is unable to provide a reformatted and certified copy of the
    transcript, the appeal will proceed on a photocopy of the transcript.

[81]

As we
    await the reconciliation of the inconsistencies between O. Reg. 94/14 and the
    Manual, and to avoid the necessity of motions for directions to resolve these
    fiscal disputes,  the following steps 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 Queens 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.

David Watt J.A.


