OCA reserves decision on court transcript dispute
By Jennifer Pritchett, Associate Editor
The Court of Appeal (OCA) has reserved its decision regarding a dispute about how court transcript copies are paid after a new Legal Aid Ontario (LAO) policy was implemented, says Kim Neeson, founder and president of Neesons Court Reporting.
The motion that was heard deals with the production of court transcript copies, as prepared by Authorized Court Transcriptionists (ACT), and whether they should be provided for free, at a reduced rate or at the rate prescribed by Ontario Regulation 94/14 made under the Administration of Justice Act, she explains.
“On the one side of the dispute, there are two criminal lawyers representing their clients — one receiving legal aid — as well as the Criminal Lawyers Association,” Neeson tells AdvocateDaily.com.
“On the other side is lawyer Cliff Lax, who is representing four ACTs who are asking for payment in accordance with the regulations under the Administration of Justice Act.”
At the heart of the issue is that the ACTs, according to the legislation's regulations, are entitled to be paid for every certified copy of the transcript produced for appeal purposes, Neeson says.
“But the problem is, LAO, in a memo, decided that ACTs are not entitled to be paid for every copy, but only for the original transcript at $4.30 per page,” she says. “Legal Aid takes the position that it offered a 'compromise' to the ACTs and agreed to pay for one additional copy.”
The ACTs involved in the two criminal appeals refused to provide the certified copies until payment (or agreement for it) was received by the lawyers involved, Neeson notes.
The motion to deal with the dispute was heard by the OCA because the transcripts being held back are for cases before the appellant court, she adds.
Neeson says the Ministry of the Attorney General, “for all intents and purposes, got rid of the court reporter model in mid-2013” in favour of "a system of monitors, who oversee the proceedings as they are digitally recorded." ACTs are trained to provide transcription services for the court transcripts.
“You must be an ACT in order to transcribe court proceedings,” she says.
A company, created to be the go-between for the ministry and the ACTs, implements rules in the form of a manual received from the province, Neeson says.
"A recent change in the manual dealt with the Legal Aid policy that no ACT may charge for any additional copies once the $4.30 (original transcript) cost was paid," she says.
“This is not how things have been done for decades. Court reporters, and now ACTs, have always charged for copies. That’s how we make our living.”
The ACTs take the position that the manual doesn’t supersede the regulations, Neeson says.
"ACTs are independent contractors who don't receive a salary from the ministry as many of them used to under the old system of court reporters," she says.
"They must pay for their own equipment, bookkeeping, software, etc. This is the cost of doing business. ACTs do not work for free, any more than lawyers or clerks do.
"This motion is an important one, and if the previous case law is followed, ACTs expect to prevail and hopefully put this debate to bed once and for all." Read more here