Friday, August 23, 2013

Do appeals need transcripts? Courts say yes!

Most appeals do not really need the transcripts; the appeal is argued and the dusty red books of transcripts remain unopened.  This is especially true in civil cases.  The appeal is based on what the court of first instance said and not much more. 


All that said, appeals are generally not heard unless the transcripts have been provided.  Ocean v. Economical Mutual Insurance Company, 2013 NSCA 90 is a good source for the view that an appeal (absent remarkable circumstances) cannot go ahead without transcripts:




[11]            The compelling reasons for the need of transcripts expressed by Justice Oland in 2011 NSCA 106 (CanLII), 2011 NSCA 106 also obtain here: 

[34]   In any event, it is my view that this appeal could not be properly heard or determined without a full transcript of the trial.  The appellant's suggestion that the appeal panel could simply rely on the trial exhibits, decision and order, so-called "hard evidence" in the court record, does not allow an efficient and just conduct of the appeal and cross-appeal.  The appellant's grounds claim that witnesses gave false testimony and the trial judge erred in her consideration and acceptance of evidence.  This "hard evidence" without more, will not substantiate or refute perjury and may not serve to show the contradictions the appellant says the trial judge should have recognized.  It would be difficult, if not impossible, for the panel to assess arguments regarding the reliability of evidence and findings of fact or inferences without a transcript of the testimony of witnesses given under direct and cross-examination.

[36]   A transcript is essential in order for the panel to fully appreciate the arguments on the grounds relating to the trial judge's dismissal of the appellant's requests for matters such as the admission of evidence and rescheduling of the hearing and her abuse of process application.  Otherwise the panel would not have before it the submissions made on the requests which the judge denied, nor her reasons.



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