A-381-90
Siegfried Janitzki (Plaintiff)
v.
Her Majesty the Queen (Defendant)
INDEXED AS. JAN/7ZX/ V. CANADA (CA.)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.A.—Ottawa, October 1 and 7, 1991.
Practice — Appeals and new trials — Judge dispensing with
services of court reporter — Recording of evidence in all
appealable cases necessary by inference from Federal Court
Rules and Ontario Rules of Civil Procedure — Trial court hav
ing duty to provide means for such recording except where
case not susceptible of appeal on questions of fact, parties con
senting to dispensing with reporting or waiving rights of
appeal — Procedural error not automatically vitiating trial
judgment — Judgment (result), not process, is subject to rever
sal on appeal.
Constitutional law — Charter of Rights — Equality rights —
Appeal from dismissal of action claiming veteran's pension
and damages — Appellant permanently disabled by disease
contracted while serving in German army in 1943 — Canadian
citizen since 1958 — Alleging discrimination by Canadian
government as denied benefits Canadian born war veteran
would have received — Pension entitlement based on type of
service — No discrimination on enumerated or analogous
ground — Charter neither extending to foreign governments,
nor imposing on Canadian government duty to guarantee
respect of Charter by foreign governments — No legal obliga
tion on Canadian government to espouse civil claim by Cana-
dian citizen against foreign government, especially when relat
ing to time when claimant foreign national.
This was an appeal from the dismissal of an action claiming
"specific damages in the amount of $150,000.00 retroactive
army disability pension" as well as punitive and exemplary
damages. Appellant, a World War II German army veteran,
says that the refusal of Veterans' Affairs Canada to either
award him a veteran's pension or press his claim with the Ger-
man government constituted a denial of his Charter section 15
rights. The appellant was permanently disabled by an illness
contracted while serving with the German army in 1943. He
has been a Canadian citizen since 1958. There was no tran-
script of the trial proceedings and evidence, Cullen J. having
sent home the court reporter prior to the commencement of the
trial.
Held, the appeal should be dismissed.
The Trial Judge erred in dispensing with the services of the
court reporter. The practice of recording the evidence given
before trial courts, by stenography or otherwise, in matters sus
ceptible of appeal flows as a matter of necessary inference
from the Federal Court Rules, particularly Rule 200(7), which
requires the Court Administrator to arrange for the attendance
of reporters at every sittings, and Rule I204(c) which makes it
clear that, absent agreement or a special order, a transcript is a
necessary part of the case on appeal. The Ontario Rules of Civil
Procedure also, by implication, require the recording of the
evidence in all appealable cases by requiring for the appeal a
transcript of some or all of the evidence. Few, if any, decisions
of courts of justice are not subject to at least one level of
appeal and even in the absence of any specific legislative or
regulatory requirements for the recording of evidence, trial
courts have a duty to provide the means for such recording.
Only where the case is not susceptible of appeal on questions
of fact, or where the parties specifically consent to dispense
with reporting or waive their rights of appeal, should a trial
judge proceed to hear witnesses without a functioning system
for the recording of their testimony. There was no such con
sent or waiver herein.
A procedural error at trial does not automatically vitiate the
decision. Failing a breach of natural justice, it is the judgment
which is subject to being overturned on appeal; the process is
only important in so far as it is reflected in the result. The
appellant had the fullest possible opportunity to present his
case.
It was not discrimination on any of the enumerated or analo
gous grounds, to grant a war veteran's pension to persons who
served in the allied forces and to deny it to those who served in
the enemy forces. All pension entitlements are based on some
sort of distinction and a distinction founded on a specific type
of service in the past is not discriminatory.
The Charter extends only to governments and legislatures
within Canada. It neither extends to foreign governments, nor
imposes on the government of Canada a duty to underwrite or
guarantee respect of the Charter by foreign governments.
There is no legal obligation upon the government of Canada
to espouse a civil claim by a Canadian citizen against a foreign
government, especially when the claim relates to a time when
the claimant was a national of the country against which the
claim is made. Since there was no substance to any of the
appellant's claims, a transcript of the evidence was not essen
tial to the disposition of the appeal.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44].
Federal Court Rules, C.R.C., c. 663, RR. 200(7), 324,
1204(c), Tariff A, s. 10, Tariff B (as am. by SOR/87-
221, s. 8).
Rules of Civil Procedure, O. Reg. 560/84, R. 61.05 (as
am. by O. Reg. 366/87, s. 16).
PLAINTIFF/APPELLANT ON HIS OWN BEHALF:
Siegfried Janitzki, Windsor, Ontario.
SOLICITORS:
Deputy Attorney General of Canada for
defendant/respondent.
The following are the reasons for judgment ren
dered in English by
HUGESSEN J.A.: This is an appeal from a judgment
of Mr. Justice Cullen in the Trial Division dismissing
the appellant's [plaintiff in the style of cause] action
but without costs.
The appeal presents two singular features.
The first has to do with the hearing of the appeal
itself. After the Appeal Books had been prepared and
memoranda filed by both parties, the appeal was set
down for a hearing at Toronto on September 17,
1991. On receipt of the order setting the hearing date,
the appellant, who represented himself, wrote to the
Court indicating that - it would not be possible for him
to attend a hearing in Toronto since he is, in his own
words, "paralysed", "totally immobile" and "heavily
sedated with morphine for pain". In his letter he sug
gested a number of alternatives, the first of which
was that the appeal be "heard" without any party
being present. Respondent's counsel then wrote to
the Court indicating that she had no objection to the
appeal being heard "on the record" in a manner simi-
lar to that provided under Rule 324 [Federal Court
Rules, C.R.C., c. 663] for motions.
After receipt of these two letters, the Court (Pratte
J.A.), then made the following order on July 22,
1991:
After reading the appellant's letter of July 5, 1991, and the
Respondent's counsel's letter of July 18, 1991, it is hereby
ordered that:
(I) The Order of the Judicial Administrator setting down this
matter for hearing at Toronto on September 17, 1991, is
hereby rescinded and, both parties consenting thereto, it is
hereby directed that this appeal be decided without any
oral hearing on the basis of the material contained in the
memoranda already filed by the parties and of the supple
mentary written representations that the parties might file
pursuant to paragraph (2) of this order;
(2) The appellant shall have the right, within 3 weeks from the
date of this order, to file supplementary written representa
tions in support of his appeal; the respondent shall then
have two weeks to file Her supplementary representations
and, if the respondent takes advantage of that opportunity,
the appellant shall have two weeks to file a written reply to
those representations.
The time limits set in this paragraph may be extended by
consent of the parties or by order of the Court.
(3) This appeal shall be decided by the Court as expeditiously
as possible after the expiry of the time limits set in the
preceding paragraph or of any extension thereof that the
parties may agree on or that may be ordered by the Court.
Thereafter, the appellant filed "an extension of my
memorandum" on August 2, 1991 and the respondent
filed a supplementary memorandum on August 23,
1991. No further memorandum having been received
from the appellant and the time fixed for his doing so
having expired, the matter was referred to the Court
as presently constituted on October 1, 1991.
The second particularity in this record has to do
with the hearing in the Trial Division which was held
at Windsor, Ontario on April 24, 1990. The appellant
was present in person and was accompanied by an
assistant (he is, as previously noted, an invalid) and
an advisor. The respondent was represented by coun
sel. What took place, which calls for comment, is
adequately described in the first three paragraphs of
the affidavit of Charlotte A. Bell, Q.C.:
1. I am a Barrister and Solicitor in the employ of the Depart
ment of Justice Canada, and was assigned to represent the
Defendants-Respondent in the action brought by the Plaintiff-
Appellant on April 24, 1990; as such I have personal knowl
edge of the matters hereinafter deposed to.
2. On the morning of April 24, 1990, shortly after my arrival at
the Windsor, Ontario courthouse where the hearing before Mr.
Justice Cullen was to be held, I was told by an employee of the
Federal Court of Canada that the court reporter initially
assigned to the Plaintiff-Appellant's case had been sent home
by Mr. Justice Cullen, his Lordship being of the view that a
court reporter would not be required.
3. The hearing then proceeded following the same procedure
as that normally used. At the hearing, the Plaintiff-Appellant
was offered the opportunity to call evidence, and did do so. He
gave evidence on his own behalf at some length. I then posed
very few questions on cross-examination. The Plaintiff-Appel
lant was offered the opportunity of calling further evidence,
but declined to do so. [Appeal Book, Appendix I, pages 5-6.]
The upshot of Cullen J.'s decision to dispense with
the services of the court reporter prior to the opening
of the trial is that we do not have any transcript of the
proceedings and more importantly of the evidence
given before the Trial Division.
In my view, it was wrong for Cullen J. to do as he
did. There was, of course, no requirement at common
law for a shorthand note to be taken of the evidence.
Indeed, prior to the invention of shorthand such a
note was, in any event, impossible; appellate and
reviewing courts were obliged to rely on the judge's
own note of the evidence made in his bench book. In
the modern day and age, however, it is the invariable
practice to record the evidence given before trial
courts, by stenography or otherwise, in matters sus
ceptible of appeal. That practice, while not expressly
required by the Rules of Court, flows from them
obligatorily as a necessary inference.
Thus, Rule 200(7) provides:
Rule 200... .
(7) The Administrator shall arrange for the attendance at
every sittings of the Court of such other persons — sheriff's
officers, ushers, reporters, interpreters and court attendants —
as may be necessary for the proper carrying on of the business
of the Court at the sittings; and, without limiting the generality
of the foregoing, the Administrator shall, unless the presiding
judge otherwise directs, arrange for the attendance of such per
sons as would be in attendance at a similar sittings of the supe
rior court of the province in which the sittings takes place.
[Emphasis added.]
The requirement for the presence of the court
reporter further appears from section 10 of Tariff A
of the Rules:
10. (1) A shorthand writer or other verbatim reporter, who is
not an employee of the Court, may be paid by the Registry out
of public funds such fees or allowances as are payable to a
shorthand writer or verbatim reporter for performing similar
services in the superior courts of the province where the ser
vices are performed or such amount as the Court may approve
on being satisfied that, having regard to all the circumstances,
it is reasonable and necessary in order to obtain the service of a
properly qualified reporter.
(2) The arrangement by the Registry with a verbatim
reporter shall include an arrangement under which the Court
and the parties may obtain copies of a transcript of the pro
ceedings if required, at fees that meet the above requirement.
Disbursements made in accordance with Tariff A
may be allowed on a party and party taxation pursu
ant to paragraph 1(2)(a) [as am. by SOR/87-221, s. 8]
of Tariff B.
Finally, Rule 1204(c) makes it clear that, absent
agreement or a special order, a transcript is a neces
sary part of the case on appeal:
Rule 1204. The appeal shall be upon a case that shall consist
(unless, in any case, the parties otherwise agree or the Court
otherwise orders) of
(c) a transcript of any verbal testimony given during the hear
ing giving rise to the judgment appealed from;
Since the hearing in the present case took place in
Windsor, Ontario and since Rule 200(7) above refers
to the practice followed in the superior court of the
province where the trial takes place, it is of some use
to look at the Ontario Rules of Civil Procedure [O.
Reg. 560/84]. They, like the Federal Court Rules, do
not specifically mandate the recording of the evi-
dence in all appealable cases. Also, like the Federal
Court Rules, however, they do so by implication in
an unmistakable manner. Rule 61.05 [as am. by O.
Reg. 366/87, s. 16] dealing with the materials to be
submitted to an appellate court reads as follows:
61.05(1) In order to minimize the number of documents and
the length of the transcript required for an appeal, the appellant
shall serve with the notice of appeal an appellant's certificate
respecting evidence (Form 61C) setting out those portions of
the evidence that, in his or her opinion, are not required for the
appeal.
(2) Within fifteen days after service of the appellant's certif
icate, the respondent shall serve on the appellant a respon
dent's certificate respecting evidence (Form 61D), confirming
the appellant's certificate or setting out any additions to or
deletions from it.
(3) A respondent who fails to serve a respondent's certificate
within the prescribed time shall be deemed to have confirmed
the appellant's certificate.
(4) Instead of complying with subrules (1) to (3), the parties
may, within thirty days after service of the notice of appeal,
make an agreement respecting the documents to be included in
the appeal books and the transcript required for the appeal.
(5) The appellant shall within thirty days after filing the
notice of appeal file proof that he or she has ordered a tran
script of all oral evidence that the parties have not agreed to
omit, subject to any direction under subrule 61.08(4) (relief
from compliance).
(6) A party who has previously ordered a transcript of oral
evidence shall forthwith modify his or her order in writing to
comply with the certificates or agreement.
(7) When the evidence has been transcribed, the court
reporter shall forthwith give written notice to all parties and
the Registrar.
(8) The court may impose costs sanctions where evidence is
transcribed or exhibits are reproduced unnecessarily.
The fact that a transcript of some or all of the evi
dence will be "required for the appeal" leads irresist-
ably to the inference that a court reporter must be
present at the trial of every appealable case.
In my view, in the modern Canadian context,
where few, if any, decisions of courts of justice are
not subject to at least one level of appeal, and even in
the absence of any specific legislative or regulatory
requirements for the recording of evidence, trial
courts have a duty to provide the means for such
recording. Only where the case is not susceptible of
appeal on questions of fact,' or where the parties spe
cifically consent to dispense with reporting or waive
their rights of appeal, should a trial judge proceed to
hear witnesses without a functioning system for the
recording of their testimony.
The record in the present case does not reveal why
Cullen J. thought it unnecessary to have the court
reporter present and so sent him away. One suspects
it was from a wholly laudable desire to put the plain
tiff at ease and to allow him free rein to air his griev
ances, however little merit his claim might have in
law. It is clear, however, that there was no consent to
dispense with the recording of the evidence and no
waiver of the right of appeal. Accordingly, the Judge
was in error.
What consequence flows? Not every error of a pro
cedural nature at trial gives rise to a successful
appeal. Failing a breach of natural justice, of which
there is no question here, it is the result, the judg
ment, which is subject to being overturned on appeal;
the process is only important in so far as it is
reflected in the result.
In the present case, the respondent has produced
two affidavits covering in considerable detail what
took place at the trial. Those affidavits have not been
contradicted by the appellant nor have the deponents
been cross-examined. They establish beyond doubt
that the appellant was given the fullest possible
opportunity to present his case, that he did so, and
that the only evidence offered by him was his own
testimony.
I Different considerations apply to courts or administrative
tribunals whose decisions may only be reviewed on questions
of law or jurisdiction. So too, of course, for courts and tribu
nals, such as the present Court, which do not themselves hear
testimony but proceed on the basis of a record generated
elsewhere.
What was the appellant's case? His statement of
claim in full reads as follows:
1. THE PLAINTIFF CLAIMS:
(a) specific damages in the amount of $150,000.00 retroac
tive army disability pension
(b) punitive and exemplary damages in the amount of
$1,000,000.00
(e) costs of this action
(d) maximum presently authorized pre and postjudgement
interest
2. THAT as a Canadian citizen since 1958, and a veteran of the
W.W. 11 in which he served as a member of the German Army,
he has been denied the benefits which might have befallen him
as a totally disabled war veteran had he not been discriminated
against, contrary to the provisions of Sec. 15 of the Canadian
Charter of Rights and Freedoms, by virtue of the fact that he is;
(a) not Canadian born
(b) seeking a veteran's, not a civilian pension
While serving with the German army in Russia in the spring of
1943, the plaintiff contracted an illness now known to have
been a strain of arboriform encephalitis of the Russian
Spring/Summer variety for which he, a foreigner had acquired
no immunity. Unfamiliar with the disease, the German doctors
inappropriately treated it with something which immediately
invoked violent trembling and loss of motor control, which
symptoms never disappeared. While he was a prisoner of war
in France in 1944, his symptoms were diagnosed as those of
"poly-neuritis", now called Parkinson's Disease. Current medi
cal opinion now strongly holds that Parkinson's Disease, as are
many other neurological disorders, is a chronic slow-acting
form of, development from, contagious encephalitis.
3. THAT Health and Welfare Canada discriminated against the
plaintiff in that it failed to insist that Veterans' Affairs Canada
assume responsibility for him as it would have had he served
with the Canadian Armed Forces.
4. THAT Veterans' Affairs Canada refused to award him a veter
an's pension or alternatively refused to press his claim through
appropriate channels to the German government though, leap
frogging Health and Welfare Canada, he expressly asked them
to do so.
5. THAT External Affairs Canada despite a request forwarded
through the Canadian Ambassador to Germany, in Ocober
[sic] of 1970, file #81-8GFR-2; and despite a reciprocal
arrangement with the Germany [sic] government for the pur
pose, failed to press his claim, filed with the German Consulate
in Toronto, pension branch, in 1961, as it might have done.
The very existence of a Convention on Social Security
Between Canada and the Federal Republic of Germany which
makes no mention of, or provisions for veterans' pensions
might be said to discriminate against veterans.
6. THAT under the Canadian Charts [sic] of Rights and Free
doms Canadian Institutions are obligated to provide benefits to
which they are entitled to all Canadian citizens, and that, if
Canadian Institutions are unwilling or unable to see that the
governments of friendly nations and in particular N.A.T.O.
allies meet their responsibilities to Canadian citizens, then the
Canadian Institutions are obligated to consider the responsibil
ity their own - and act accordingly.
7. Documents and testimony to substantiate the claim will be
presented at the trial by the plaintiff, acting in person.
8. The plaintiff's symptoms are severe, and his mobility
strictly limited. He therefore proposes that this action be tried
in the City of Windsor in the County of Essex. [Appeal book,
pages 2-4.]
Giving this claim the most generous possible inter
pretation, it seems to me to assert three grounds for
relief:
a) A claim for a veteran's pension based on discrimi
nation by the Canadian government contrary to sec
tion 15 of the Charter [Canadian Charter of Rights
and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44]]; 2
b) A similar claim based on similar discrimination by
the German government for which the Canadian gov
ernment must answer;
c) A claim for damages resulting from the Canadian
government's failure to espouse the plaintiff's claim
against the German government.
2 Cullen J. seemed to think that this part of the claim had
been dropped by plaintiff (reasons, Appeal Book, p. 88). The
latter in his memorandum disputes this. Since we have no
transcript 1 will assume that Cullen J. misunderstood plaintiff's
position.
With regard to the first claim, it is not discrimina
tion on any of the grounds enumerated in section 15,
or any analagous ground, to grant a war veteran's
pension to persons who served in the allied forces
and to deny it to persons who served in the enemy
forces. All pension entitlements are based on some
sort of distinction and a distinction founded on a spe
cific type of service in the past is not discriminatory.
With regard to the second ground of claim, the
Charter is limited in its reach to governments and
legislatures within Canada. Its obligations do not
extend to foreign governments, nor does it impose on
the Government of Canada a duty to underwrite or
guarantee respect of the Charter by foreign govern
ments, whether or not such governments are friendly
or members of NATO.
Finally, there is no obligation in law for the Gov
ernment of Canada to espouse a civil claim by a
Canadian citizen against a foreign government, espe
cially when such a claim relates to a period of time
when the claimant was a national of the country
against which the claim is made.
In these circumstances, it is not essential for us to
have a transcript of the plaintiff's evidence. There is
simply nothing he could have said or asserted which
would have given any substance to any of his claims.
His action was quite properly dismissed and we
should not interfere.
The Trial Judge, in the exercise of his discretion,
awarded no costs. That was no doubt a proper order
and I see no reason to interfere with it. By the same
token, however, I see no reason why the costs of the
present appeal should not follow the event.
I would dismiss the appeal with costs.
PRATTE J.A.: I agree.
MARCEAU J.A.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.