Canada: Technology And The Law: Ontario Court Of Appeal Confirms Parties Cannot Record Proceedings Without Court Order

Last Updated: May 3 2019
Article by Cynthia Spry

It's fascinating to see the changes technology is making in the law. We did a three-week trial in December that was completely electronic. It was liberating. There was no schlepping of fifteen bankers' boxes of documents to court on the first day, no agonizing over which binders we needed to lug back to the office for that evening's cross-examination preparation, and no need to cover everything in colour-coded stickies to be able to find that crucial document at a moment's notice. It also saved a considerable amount of court time, because we could all navigate between the documents so much more quickly.

But we did have one technological issue: the transcription of one of the cross-examinations was so garbled that we had to order the audio and transcribe it ourselves. The undertaking we were required to give to get the audio recording was so strict that we were not even permitted to share it with opposing counsel, and they had to take our corrections on faith, or sign their own undertaking in order to receive it.

There can be lots of issues with ordering transcripts – if you don't have real-time transcription there can be long delays, transcripts are expensive, and sometimes (luckily not very often) they're quite wrong.

As the efficacy of speech-to-text software increases, it's not surprising that the Ontario Court of Appeal was recently asked to consider the question of whether the parties to a proceeding are entitled to obtain and disseminate recordings of proceedings in the Court on their own terms.

The short answer? Absolutely not.

In Michail v. Ontario English Catholic Teachers' Association, 2019 ONCA 319, a former employee of the London District Catholic School Board was involved in a protracted dispute with her former employer. After Ms. Michail's appeal was quashed on jurisdictional grounds, she brought a motion seeking, among other things, orders:

  1. dispensing with the requirement that she sign a standard undertaking in order to obtain the release of audio recordings of certain hearings;
  1. permitting her to transcribe the proceedings; and
  1. 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.

The motion judge's decision: Justice Brown dismissed Ms. Michail's motion, finding he did not have jurisdiction to grant the relief sought, because there was no longer a live appeal. Ms. Michail brought a motion to review.

Arguments on motion to review: At the hearing of the motion to review, Ms. Michail argued that the constitutional principle that the courts be open to the public requires the Court to permit video recording of its proceedings and dissemination of those records, subject to certain exceptions, without any justification for the recording at all. Alternatively, she argued that video recording is required to keep judges and lawyers accountable to the public, and for public education.

The decision of the Court of Appeal: The Court of Appeal agreed with Ms. Michail that the motion judge had erred, in that he did have jurisdiction to make certain of the orders sought, but dismissed the motion for review on its merits (or lack thereof).

Video recordings of proceedings in courts in Ontario are governed by section 136(1) of the Courts of Justice Act. This section establishes a general prohibition against video recordings, subject to exceptions provided in section 136(3), including that the video recording is made with the authorization of the judge.

A judge has 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.

Ms. Michail's principal submission was that she had a constitutional right to video record and disseminate the proceedings. The Court understood Ms. Michail's submissions to be not a constitutional challenge to section 136, but rather that all statutory grants of discretion must be exercised in accordance with the principles underlying the constitution, and that the open courts principle requires that video recording, streaming and archiving be permitted.

The Court disagreed. It held that the open courts principle is only one constitutional principle among many, and is not automatically dispositive. Judges have a wide discretion to authorize a video recording, but there must be some reason for it that relates to the circumstances of the case.

The Court also noted that it makes digital audio recordings of its proceedings for internal use that are not governed by section 136 (as this section relates to records by third parties). The Court makes these recordings pursuant to its inherent power to govern its own process. Pursuant to s. 17 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, these recordings are made available on request, for personal use only, on the condition that the person requesting the recording signs an undertaking agreeing to respect the limits on the permitted uses of the recording.

The Court held that the motion for an order dispensing with the requirement that the digital audio not be disseminated was properly before the motion judge, but Ms. Michail provided no reason that would justify releasing her from the obligation not to disseminate.

With respect to the proposed challenge to the constitutional validity of section 136 of the Courts of Justice Act, however, the Court held that the motion judge had no jurisdiction to grant this request. A constitutional challenge to a statute cannot be brought in the absence of a valid appeal.

The Takeaway: While Ms. Michail's arguments were not well framed, one does wonder if the time will come, sooner rather than later, when the legislature will be asked to reconsider the general prohibition against recording proceedings set out in section 136(1).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions