Many judicial and quasi-judicial proceedings these days are recorded on audio- or videotape, rather than by a court reporter taking notes in person then transcribing them. Usually the audio tape is then transcribed, at least if someone needs a transcript. 

The recordings are often taken as the (or an) ‘official’ version of the proceeding. For example, a practice direction of Ontario’s Workplace Safety Insurance Board (WSIB) treats recorded and transcribed proceedings on an equal footing. The rules of practice of the US Nuclear Regulatory Commission provide in Rule 2.237(a), “If the hearing is recorded on videotape or some other video medium, before an official transcript is prepared under paragraph (b) of this section, that video recording will be considered to constitute the record of events at the hearing.”

What is frequently not clear in these rules is the use that may be made of the recording in a further proceeding. When a party needs a record on which to found an appeal, may that party rely on the oral recording? May the opposing party, or the appeal tribunal, insist on a written transcript?

This question was recently debated before the Administrative Tribunal of Quebec. The
Régie des alcools, des courses et des jeux (the alcohol, racing and gaming board) had held a hearing with respect to the operations of a numbered company, 9056-5425 Québec Inc. The company appealed to the Tribunal. The Régie tendered as its evidence of what had happened at its hearing a CD containing a tape recording of the nine days of hearings before it. The company asked the Tribunal to order the Régie to produce a written transcript. The Tribunal refused to do so. (2010 QCTAQ 11154).

In support of its decision, the Tribunal quoted extracts from Quebec’s Act to provide a legal framework for information technology, R.S.Q.c. C-1.1, in particular those supporting technology neutrality and functional equivalence. In addition, its own rules of evidence gave it great discretion to admit proof in whatever form served the interests of justice. The only two exceptions mentioned in those rules were that the evidence was illegally obtained and would cast the administration of justice into disrepute, and that the evidence was not relevant and not of a kind to serve the interests of justice. Digital recordings of the hearings of the Régie did not fall under either exception.

The Tribunal also noted section 4.2 of the Code of Civil Procedure in favour of proportionality of costs compared to the stakes of a proceeding. While that Code did not apply directly to the Tribunal, similar principles were found in its own rules.

The applicant’s difficulties with the CD recording were noted by the Tribunal: how can the party refer to the passages it wants to use? How can it cite a word or sentence in particular? How can one identify the person who is speaking? Is the witness speaking clearly? Does everyone have the same understanding? It would also be necessary to adjust the way the appeal was heard in order to accommodate this kind of evidence.

The Tribunal admitted that it would not be appropriate to allow a recording in every case, but where a transcript was needed, it was up to the party who wanted it to have it made.

The Superior Court of Quebec had made a similar ruling (not cited by the Tribunal) in the case of La Citadelle v Communauté urbaine de Montréal (2005 CanLII 24709). There the City was prosecuting people involved in the Stanley Cup ‘riots’ of 1993. (These cases unfold at leisure, it would appear.) The City served on the other parties two CDs of text, otherwise printable to 10,000 pages. The other parties asked for printed records. The Court refused to order them printed.

Once again the Court referred to the Quebec statute on a legal framework for information technology and supporting amendments to the Civil Code of Quebec. The basic theme is the interchangeability of media. Unless the law expressly requires otherwise, parties can use information in the medium that suits them. The evidential value of the information is not changed by the choice of medium. While the information must have integrity, the integrity is presumed unless the party opposed to its production shows on balance of probabilities that the integrity has been compromised.

There are cases in common-law Canada about producing records on CDs rather than in printed form. Ontario’s and B.C.’s rules support proportionality arguments. However, I know of no cases allowing a recording of the proceedings of a case or tribunal proceeding to be used in place of a transcript in writing of that proceeding. Commenters may fill in the blanks in my research.

Does it matter that common-law Canada has generally adopted the Uniform Electronic Commerce Act? Its principles are the same as those of its Quebec counterpart: technology neutrality, media neutrality, functional equivalence of electronic and paper records. Quebec’s statute has far more detail about the consequences of its principles. Most of the passages quoted in the two cases above have no direct equivalent in the UECA or its provincial implementations.

In Ontario, the Statutory Powers Procedure Act (SPPA), R.S.O. 1990 c. S.22, provides for electronic hearings (s.5.2ff). Those provisions say nothing about the form of evidence at such hearings. It is otherwise silent on the recording of proceedings and the use of such recordings in further evidence.

Do we in common-law Canada need the extra statutory help? Could such a policy be implemented by a change in the Rules of Civil Procedure alone, or by administrative agencies acting under the authority of the SPPA? 

Or is the Administrative Tribunal of Quebec case even rightly decided, in your view? Whose side does the proportionality rule favour in such a debate? Does the answer depend on the availability of tools for searching records of oral proceedings that work as well as searches of electronic texts do now?

What should be done?

(Thanks to Patrick Gingras of Quebec's Department of International Relations for the case reference.)