Accessing transcripts for JMC or CPC

[MrSmith]

If you are seeking a transcript from a Judicial Management Conference or Case Planning Conference

Here is the argument, citations and law to use, just copy and pate fill in the blanks.

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X. ORDER FOR RELEASE OF TRANSCRIPT

Order For The Release of the ( date of hearimng) Transcript

(a) Introduction

190. Pursuant to 'Rule 8-1' of the 'Supreme Court Civil Rules', the Applicant is entitled to seek an order regarding access to records within the custody and control of the Court. While 'Rule 5-3' governs the private and procedural nature of management conferences, the Court retains Inherent Jurisdiction to control its own records and can vary access rules to ensure the ends of justice are met (Rule 13-1(19)). Under Section 7.3.1 of the 'Supreme Court of British Columbia Policy on Access to the Court Record', a party may be granted access to restricted management conference audio or transcripts by explicit Order of a Judge.

191. The Applicant relies on the principle that the open court principle and the interests of justice require the disclosure of the verbatim record. While statements in judicial proceedings carry a qualified or absolute privilege against certain standard claims, such immunity does not shield a practitioner from the Court's scrutiny or from independent causes of action rooted in intentional torts where the record itself constitutes the primary evidence of the wrong.

(b) Section 7.3.1 of the Supreme Court of British Columbia Policy

on Access to the Court Record

192. I seek an order pursuant to the Rules of Court and Section 7.3.1 of the Supreme Court of British Columbia Policy on Access to the Court Record granting the Applicant leave to obtain a copy of a certified transcript of the Judicial Management Conference held on (Month) (day), (year), at (Time) in (location) (File No. xxxxx), for use as essential evidentiary material in a civil claim for damages. Section 7.3.1 reads as follows:

SUPREME COURT OF BRITISH COLUMBIA

POLICY ON ACCESS TO THE

COURT RECORD

7.3 Obtaining Copies of Audio Recordings of Civil Proceedings

This section describes the Court’s policy concerning who may obtain a copy of an audio recording of a civil proceeding and on what basis.

7.3.1 Conferences

The Supreme Court Civil Rules and this policy provide that no one may have access to an audio recording of a case planning conference, trial management conference, judicial management conference, or settlement conference unless the Court makes an order allowing access to the audio recording.

A person wishing to obtain a copy of the audio recording of a case planning conference, trial management conference, judicial management conference, or settlement conference must make an application in accordance with the Supreme Court Civil Rules and Part 8 of this policy.

If the Court makes an order permitting a person to obtain a copy of the audio recording of a case planning conference, trial management conference, judicial management conference, or a settlement conference, the order may include conditions that restrict the use of the copy and prohibit any further distribution of it.

193. This transcript is sought for proper purposes. It is sought because it contains the verbatim record of statements made by the ________- statements that I allege constitute ____________________________________________.

194. The transcript is essential evidentiary material in my civil claim for damages. Without it, I cannot prove the precise nature and scope of the misrepresentations made at that conference. The record itself constitutes the primary evidence of the wrong.

(c) Legal Framework For Access to Records

(i) The Presumption of Access and the Open Court Principles

195. The starting point for any analysis of access to court records is the open court principle. The Supreme Court of Canada in Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 stated at paragraph 1. I will provide this citation couched in another case, that provided more content, which was Canadian Broadcasting Corporation v. Canada (Attorney General), 2016 FC 933, [2017] 2 FCR 304, at para 50, as follows:

[50] The Supreme Court of Canada has repeatedly affirmed the importance of the open court principle. Starting in 1982, Justice Dickson [as he then was] wrote in A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, at page 185, “covertness is the exception and openness the rule” and, at page 186, “the rule should be one of public accessibility and concomitant judicial accountability”. Later, in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at paragraph 22, Justice La Forest described the open court principle as “‘one of the hallmarks of a democratic society’” and at paragraph 23, “[o]penness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings.” In 2005, in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 (Toronto Star Newspapers), at paragraph 1, Justice Fish wrote: “n any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy.” More recently, in Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19, at paragraph 1, Justice Deschamps commented as follows:

The open court principle is of crucial importance in a democratic society. It ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them. Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.

See also Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, at paragraphs 9–11; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paragraphs 23–27; Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65 (Canadian Broadcasting Corp.), at paragraph 12; and A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567 (Bragg Communications Inc.), at paragraphs 11 and 13.

196. A right of access to court records is thus presumed. The Court recognizes that:

a) The open court principle is a fundamental constitutional protection providing a presumptive right of access to Court Records;

b) Restrictions on access are justified only where serious risks to privacy or other important interests such as the proper administration of justice outweigh a presumptive right of access; and

c) Where restrictions on access are necessary, such restrictions should minimally impair the presumptive right of access.

(ii) The BCSC Policy on Access to the Court Record

197. The Supreme Court of British Columbia's Policy on Access to the Court Record provides the specific framework for accessing restricted records. The Policy recognizes that the court has inherent jurisdiction over its records and the responsibility to make sure that access respects applicable laws and constitutional rights.

198. Section 7.3.1 of the Policy expressly addresses access to transcripts of judicial management conferences. The Policy further provides that an applicant seeking such access must bring an application in accordance with the applicable Rules of Court. Section 8.4 of the Policy confirms: "Applications for access to the court record for any ongoing proceeding will be determined by the judge or associate judge who presided over, or is assigned to the proceeding." Section 7.4.1 of the Policy provides that where a transcript of a restricted proceeding is required, an application must be made to the presiding judge. The Policy does not prohibit access - it requires judicial authorization.

(iii) Rule 13-1(19) – Inherent Jurisdiction

199. Rule 13-1(19) of the Supreme Court Civil Rules confirms the Court's inherent jurisdiction to control its own processes:

Rule 13-1 — Orders

Orders on terms and conditions

(19) When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

200. This Rule provides the foundation for the Court to vary access rules to ensure the ends of justice are met. The Court's inherent jurisdiction over its records is a well-established common law power.

(d) The Ground For Access

(i) The Allegations of ______

201. On (date), a Judicial Management Conference was held before Justice (name) in File No. xxxx. At that conference, _____________________ made representations to the Court. I allege that those representations were _________________________________________.

202. Specifically, I allege that _____________:

a)

b)

c)

203. The Applicant relies on the principle that the open court principle and the interests of justice require the disclosure of the verbatim record where a participant in a proceeding is alleged to have committed _________________________.

204. While statements in judicial proceedings carry a qualified or absolute privilege against certain standard claims, such immunity does not shield a practitioner from the Court's scrutiny or from independent causes of action rooted in ________________ intentional torts where the record itself constitutes the primary evidence of the wrong.

(ii) The Exception to the Privilege Attaching to Conference Records

208. The Policy on Access to the Court Record recognizes that conferences are generally confidential. However, the Policy also recognizes that access may be granted where the interests of justice require it.

209. Section 7.3.1 of the Policy is not a prohibition. It is a procedural mechanism. It states that applications for access will be determined by the judge who presided. This acknowledges that there are circumstances where access should be granted.

210. The exception to the general rule of non-access applies where:

a) The applicant has a genuine and substantial interest in the record;

b) The record contains evidence essential to a claim or defence;

c) The interests of justice outweigh the policy considerations underlying confidentiality;

d) The record is the primary evidence of an alleged wrong; and

e) The request is not for an improper purpose.

211. All of these factors are present in this case.

(e) The Interest of Justice Require Disclosure

(i) The Record is Essential Evidentiary Material

212. The transcript of the Judicial Management Conference is essential evidentiary material in my civil claim for damages.

213. The statements made by ________________ at that conference are directly relevant to my claims for:

a)

b)

c)

214. Without the transcript, I am forced to rely on my imperfect recollection and notes of what was said. The Defendants have the benefit of, my lack of the official record. This is a fundamental unfairness.

(ii) The Record is the Primary Evidence of the Wrong

215. The statements in the Judicial Management Conference are the very acts that constitute the alleged wrong. The record itself is the primary evidence.

216. In cases involving_____________ the court record is often the only reliable evidence of what was said and done. The maxim interest reipublicae ut sit finis litium - it is in the public interest that litigation have an end - requires that the Court have access to all relevant evidence to resolve the dispute.