Court File and Parties

COURT FILE NO.: 552/07

DATE: 2008/10/10

SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: Robert Freedland (plaintiff/appellant) v. Polten & Hodder (defendant/respondent)

BEFORE: Justice D. Bellamy

COUNSEL: Robert Freedland, in person, for the appellant, moving party Guillermo Schible, for the respondent, responding party

HEARD AT TORONTO: October 10, 2008

ENDORSEMENT

Bellamy, J.

[1] This Endorsement is for the first of two motions I heard on October 10th involving these two parties.

[2] The appellant appealed a decision of a Small Claims Court Deputy Judge. After the appellant received the transcript of the trial, he says he noticed a number of serious omissions from the transcript that do not at all coincide with his recollection of the trial proceedings. These are not mere grammatical editing changes, he says, but are clear illustrations of the Deputy Judge evidencing a reasonable apprehension of bias against him.

[3] After having noted the apparent discrepancies, the appellant immediately contacted the manager of the court reporter’s office within the Small Claims Court. At the appellant’s request, this manager listened to portions of the audiotapes at issue and compared them to the transcripts. He found some grammatical errors but nothing that supported the appellant’s concerns.

[4] The appellant now asks for a true copy of the audiotapes to verify whether the comments have been intentionally omitted from the transcripts or whether the audiotapes have been altered. He also asks for an order extending the time to perfect his appeal, as he will not be in a position to perfect his appeal by November 3, 2008 without these audiotapes.

[5] The allegations Mr. Freedland makes are very serious ones. If a court reporter or a Deputy Judge were to have excised portions of a transcript that were incriminating against a judge, that would constitute extremely serious behaviour that could well bring the administration of justice into disrepute.

[6] As a result of these serious allegations, I listened very attentively to Mr. Freedland’s thorough and passionate submissions. Having done so, having heard also from counsel for the defendant law firm, and having reviewed the transcripts, I have satisfied myself that this is not an appropriate case for me to order that a copy of the audiotape be produced. First, Mr. Freedland has not satisfied me that there is good reason to doubt the accuracy of the transcript as required under s.48(2) of the Evidence Act, R.S.O. 1990, c.E23. Second, he has not satisfied me that the comments he says were made, but not transcribed, would support an allegation of reasonable apprehension of bias. Third, some of the comments alleged to have been made which, he says, did not find their way into the transcript, relate to counsel for the defendant and are irrelevant to the trial judge’s behaviour towards the appellant. Fourth, some of the comments alleged to have been made might have been made during submissions, as Mr. Schible contends and as Mr. Freedland somewhat concedes. Submissions are not routinely transcribed in civil cases and they were not transcribed here.

[7] Accordingly, the motion is dismissed in its entirety, and as a result, there is no need to extend the time to perfect the appeal.

[8] Given that there has been mixed success between this motion and the respondent’s motion, there will no order as to costs.

Bellamy, J.

DATE heard: October 10, 2008

Date released: October 15, 2008