2015 MBCA 29, 2015 MBCA 29

Citation: Klippenstein v. Manitoba Ombudsman, Date: 20150330 2015 MBCA 29 Docket: AI14-30-08283 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : LARRY PETER KLIPPENSTEIN ) L. P. Klippenstein ) on his own behalf ) (Plaintiff) Appellant ) W. S. Gange ) for the Respondent - and - ) ) ) ) ) ) J. Taylor on a watching brief for the Public Guardian and Trustee of Manitoba MANITOBA OMBUDSMAN ) Chambers motion heard: ) January 29, 2015 ) (Defendant) Respondent ) Decision pronounced: ) March 30, 2015 MICHEL A.

MONNIN J.A. [ 1 ] The appellant brings a motion seeking an order that a justice of this court, Mainella J.A., be required to provide the appellant with a transcript of hearings held before him in chambers on October 29 and 30, 2014. [ 2 ] The grounds for this request are set out in the appellant’s notice of motion in the following terms: … That Justice Mainella on October 29th and 30th did violate the [appellant]’s constitutional and statutory rights, and that the recorded statements made October 29th 2014 are relevant to the manner in which Justice Mainella did violate the rights of the [appellant]. [ 3 ] In an affidavit in support of his motion, the appellant further states: 6.

What was said at the hearing October 29th concerning how things would proceed on October 30th and December 22nd are essential evidence for purposes of the appeal of Justice Mainella’s order from October 30th 2014 as the record of what was said is necessary to prove the issue complained of in this appeal of Justice Mainella’s order. 7.

It is my belief that the record in the transcript from October 30th demonstrates the discrimination on the basis of mental disability by Justice Mainella against me that contravenes sections 7 and 15 of the Canadian Charter of Rights and Freedoms , and it is further my belief that the recorded statements in the transcript confirm that the discriminatory actions of Justice Mainella are either intentional or a

palpable and overriding error that should be set aside on appeal. [4] In addition, at the hearing of this application, the appellant indicated that he was relying on Queen’s Bench Rule 36,Man. Reg. 553/88, to justify his request. He argued that, because there is no similar rule in the Court of Appeal Rules, Man.

Reg.555/88R, reliance can then be placed on a Queen’s Bench rule that covers the matter in issue. [5] Neither the Manitoba Ombudsman nor the Public Guardian and Trustee of Manitoba took a position with respect tothis application. [6] However, I found instructive a letter dated January 8, 2015, written to a Deputy Registrar of this court by counsel,Rocky Kravetsky, with a copy to the appellant with respect to files AI14-30-08112; AI13-30-08084; and AI13-30-08075. The purpose ofthat letter was to bring to the attention of Justice Mainella, the presiding judge in those matters, Mr.

Kravetsky’s opposition, on behalf ofhis client, to the present appellant’s request to have transcribed certain proceedings that had taken place. [7] Unlike the Court of Queen’s Bench, where a record of the evidence is required to be taken for appeal purposes, thereis no such requirement in this court, either in chambers or before a panel of judges.

This is due to the fact that evidence is usually notadduced in this court except in the unusual circumstance where there is a need to provide fresh evidence as part of an appeal process. [8] There has, however, been a practice established in recent years that judges sitting in chambers, and/or as a panel of thecourt, will record the proceedings as an additional note-taking tool. It is a transcript of such a proceeding that the appellant seeks to haveprovided to him. [9] Traditionally, in both this court and the Court of Queen’s Bench, no record was kept of oral argument or counselsubmissions.

In point of fact, the hearing of this present application was not recorded.

Before the advent of modern-day recordingequipment, when proceedings were transcribed by court reporters, only evidence and decisions were recorded as, in reality, it is only theevidence and a judge’s decisions that can come under review in a subsequent appeal process. [10] Modern technology has now permitted the recording of more of the proceedings, such as what transpires in a chamberscourtroom, but, in my view, that is done only as a memory aid to a sitting judge and not for public consumption. [11] It should be noted that when I became a judge many years ago, I took my notes with a pen in a bench notebook.

Thateventually evolved to my taking notes with the aid of a computer and the next step in the evolution of the process was the making of anaudio recording. What, however, has remained a constant over that period of time is that throughout, I was recording notes for my ownuse and benefit and not for the parties appearing before me. [12] It is a practice of long standing that a judge’s notes are not disclosable to the parties appearing before him or her, just asa judge or an administrative tribunal is not compellable in a subsequent proceeding to establish the process that brought about a particulardecision.

See Agnew v. Ontario Association of Architects (1987), (ON SC), 26 O.A.C. 354 at para. 43 (Div. Ct.). [13] It is also my understanding that the appellant has initiated a criminal complaint against Mainella J.A. and wishes toutilize the transcripts he is seeking to further that complaint. That being the case, it is a further reason why the appellant’s requestshould be denied. In Love v.

Bell ExpressVu Limited Partnership et al., 2006 MBCA 92, 208 Man.R. (2d) 24 at para. 11, Scott C.J.M.quoted the following passage from Halsbury’s Laws of England, 4th ed. reissue, vol. 28 (Toronto: Butterworths Canada Ltd., 1997) asauthority for the principle that what is said in a court proceeding cannot be utilized as a basis for another action. The passage reads (atpara. 97): Absolute privilege. No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary courseof any proceedings before any court or judicial tribunal recognised by law.

The evidence of all witnesses or parties speaking withreference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. The privilegeextends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by thisprivilege.

However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has aduty to make statements in the course of the proceedings. …. [14] It is also noteworthy that The Freedom of Information and Protection of Privacy Act, C.C.S.M., c. F175, specificallyexcludes from the provisions of that Act, documents such as that which the appellant is seeking. Sections 4(

a) and (

b) provide: Records to which this Act applies 4 This Act applies to all records in the custody or under the control of a public body but does not apply to (

a) information in a court record, a record of a judge, master or justice of the peace, a judicial administration record or a record relating to

support services provided to a judge or judicial officer of a court; (

b) a note made by or for, or a communication or draft decision of, a person who is acting in a judicial or quasi-judicial capacity; [ 15 ] Based on what I have set out in the previous paragraphs, I would not grant the appellant’s request if he was seeking to have my notes provided to him. He, however, is not seeking a transcript of my notes but those of another judge of this court.

I am of the view that another judge of this court could not direct me to release my notes to anyone, nor am I entitled, or am I presumptuous enough to direct that another judge do exactly that. [ 16 ] I am not prepared to grant the appellant’s request, but I am also not inclined to dismiss his application out of hand as, in my view, the appellant has brought his request before the wrong judge. Such a request should be made before the judge whose notes he wants disclosed and that judge can decide whether or not he or she is prepared to provide them. J.A.