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The Court of Appeal for Ontario dismissed Omar Matthews’s appeal, holding that 17 years of inaction without follow-up did not amount to due diligence.
The Court of Appeal upheld the registrar’s refusal to permit limited transcripts, finding the appeal issues were fact-rich and required the full trial record.
Appeal from a case management order was allowed in part because the filing deadline conflicted with an earlier order requiring transcript production.
The Federal Court held that Rule 17(d) does not require a tribunal to create a transcript where none exists, and dismissed Zhang’s motion for one.
Leave to bring the motion to extend time was denied because the appellant failed to demonstrate a continuing intention to prosecute the appeal, caused inexcusable and excessive delay by refusing to obtain transcripts despite orders and assistance, presented no arguable issues (many grounds were frivolous or vexatious), and engaged in conduct amounting to an abuse of process which prejudiced the respondents; accordingly the motion was dismissed.
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The motion to extend time was denied because the applicant did not demonstrate an intention to appeal within the appeal period, provided insufficient explanation for the long delay, the proposed challenges were fact based with no realistic prospect of success, and the court lacked jurisdiction to extend time for interim orders overtaken by final orders; transcript requests were not proper relief in this application and changed circumstances must be addressed by variation proceedings.
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The chambers judge’s order was correct: the record provided exceeded the applicable requirements for an inmate/in person appeal, there is no entitlement to a complete trial transcript at public expense, and no reason existed to adjourn or disturb the release‑pending‑appeal terms; accordingly the application to review the chambers judge’s order was dismissed.
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The judge exercised discretion under Rule 90.29(5) and refused to order the Court (Province) to prepare and pay for the transcript for a private matrimonial appeal; the appellant remains responsible for the Appeal Book and transcript, and the motion for production of transcript was dismissed with directions to file a compliant Appeal Book by a fixed date; the motion to dismiss for non‑compliance was reserved pending compliance.
Source excerpt
The motion for directions and for further extensions of time was dismissed because the appellant failed to provide an adequate explanation for repeated and lengthy delay, failed to obtain required transcripts despite notice, had previously been granted extensions, and failed to show that the new evidence would likely alter the trial judge's credibility-based findings; accordingly no further extension was warranted and costs were awarded to the respondents.
Source excerpt
Given evidence the appellant had made efforts to obtain a transcript and some objective support for delay, but rejecting the 16-day delay argument as without merit, the court exercised its discretion to grant a limited extension to March 13, 2013 as a proportionate balancing of the appellant's need and the respondents' interest in finality and expedition; no costs were ordered and a condition was imposed that no further extensions would be granted.
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