New transcription process strained, say shorthand court reporters

A group of shorthand reporters say the cracks are starting to show in Ontario''s new court transcription process after a judge had to step in to stop overcharging in Goderich, Ont.

In a recent decision, Ontario Superior Court Justice Lynda Templeton ruled a man appealing against his sexual assault conviction shouldn't have to pay the premium cost of a “first” certified transcript twice just because the original was ordered before he launched his appeal. The ruling saved him almost $3,000. 

The judgment came as no surprise to Angela Gunn, the president of the Chartered Shorthand Reporters' Association of Ontario, who says many of her clients have complained about the conduct of authorized transcriptionists ever since the province outsourced the production of court transcripts two years ago.

“We call this decision a hairline fracture, because we've been hearing from judges and lawyers that there has been no real oversight of this process from the government since they contracted it out. They have washed their hands of it,” Gunn says.

After years of conflict with government-employed court reporters who also did transcription work, the province separated the two functions in June 2014 by outsourcing all transcript production to independent contractors on a list of approved vendors.

The CSRAO has been a long-time critic of the new transcript process, in part because the changes cemented digital recording as the standard method of certifying proceedings in Ontario, virtually eliminating real-time reporting by CSRAO members from the courtrooms of the province.

Provincial employees can still join the list of Approved Court Transcriptionists, but they are considered independent contractors when acting in that capacity. An independent service provider, Arkley Professional Services, won the bid to maintain and administer the official list of ACTs, and it is also the first point of contact for disputes about transcript production.

“We've been hearing more and more about the deterioration of the quality of transcripts,” Gunn says. “Part of the problem is that people have to complain to Arkley, so we don't know how many are out there. There's no transparency or accountability in the process.”

Brendan Crawley, a spokesman  for Ontario's ministry of the attorney general, told Law Times in a statement that the province “has confidence” in the current model and that no changes are currently planned.

“The Ministry continues to set court transcript standards established by legislation, regulation, policy, and practice direction,” Crawley wrote, noting that delays in transcript production have significantly dropped in the last two years, including a 77-per-cent drop in the number of cases reviewed by judges due to transcript delay in the court of appeal.

The regulations associated with the new process provide for a premium charge of $4.30 per page to produce a first certified transcription of a digital court recording, with the rate for any subsequent printed copy set at 55 cents per page.

In the case of R v. Vandergunst, the lawyer for defendant Mitchell Vandergunst ordered transcripts during his 2014 trial from two transcriptionists: Kathy Glenn and Lindsay Gionet. The transcripts were provided at the prescribed rate for a first certified copy, which was then $3.20 per page. After Vandergunst's conviction for sexual assault, he hired a new lawyer, Mark Halfyard, for an appeal at the superior court, which requires the filing of three copies of trial transcripts.

But when Halfyard returned to Gionet and Glenn for two additional copies, they informed him that they viewed the appeal as an entirely new proceeding, and said their policy was to prepare three new transcripts, with the price reverting to one at the full rate, plus two at the copy rate of 55 cents per page.

Relations between the lawyer and the transcriptionists quickly deteriorated, and Halfyard ultimately brought an application at the superior court to settle the matter. In her Feb. 5 decision, Templeton found   that despite their position as independent contractors, ACTs do not have the discretion to refuse a request to produce a transcript once one of the parties asks them for it. In addition, she found they have no discretion to alter the fee structure set by the province. In Vandergunst's case, Templeton concluded two new copies were all that was required for his appeal, and she ordered Gionet and Glenn to produce them at the rate of 55 cents per page.

However, the judge added that she could not fault the ACTs for the position they had taken “due to the advice received from Arkley and a perceived lack of oversight with respect to these issues by the Attorney General.”

“The issues in this case have highlighted the need for regulation and oversight by the Attorney General with respect to ensuring the integrity of the administration of justice in the context of the new model of court reporting that it has decided to adopt,” Templeton added.  

Gionet says she and other ACTs feel hung out to dry by Templeton's decision on their inability to refuse transcription work, since it contradicts advice she says they were given by the province when they agreed to the new process. 

“We were told we had the right to decline work, but that's clearly not the case. We've been trying to contact the ministry, but they're not giving any response. We're the ones who have been left to pick up the pieces, which seems unfair,” she says.  

Gionet says she and Glenn will be happy to abide by Templeton's ruling on the pricing of appeal copies, even though she says it was common practice to charge the premium rate again for appeals when the province handled transcript work themselves. However, she warns it could have an adverse impact on the quality of transcripts going to appeal courts.

“That's the way we were taught. When a case goes up to an appeal, you have to take certain things out, and make certain inclusions and exclusion. In effect, you're redoing the whole transcript,” Gionet says. “If people aren't being paid to do that work, they're not going to do it, and it will make a big mess at the court of appeal, because there's going to be so much stuff in there that they don't want or have the time to deal with.”

Halfyard says he was pleased with the outcome because clients can no longer “be left in limbo” by disputes over transcript pricing, but she says the lack of direction from the ministry of the attorney general on the subject has been “frustrating.”

“There should be some clearer answers for court reporters and parties about how this should actually work in practice. It shouldn't be up to litigants to go to court and sort out the nuts and bolts themselves,” he says.

Daniel Brown, a Toronto-based director of the Criminal Lawyers' Association, says the new transcript process as a whole is an improvement on the old system, since lawyers are no longer beholden to potentially slow or unresponsive court reporters for transcripts, just because they were the ones who were actually present in the courtroom. However, he says a more hands-on approach from the provincial government would improve the situation.

“There needs to be more instruction and guidance given to court reporters, because they seem to have been given a lot of misinformation, whether it's from Arkley or the ministry of the attorney general,” Brown says.