Disciplinary law: only stenographic notes consisting of significant inaccuracies can be contested
In a short judgement rendered on February 18th, 2022, the Professions Tribunal confirms that in order to contest the validity of stenographic notes filed with the courts, it is not sufficient to only identify the imprecisions and inaccuracies that may exist. One must also demonstrate that these errors are susceptible of having an impact on the outcome of the appeal (Trudeau v. Avocats (Ordre professionnel des), 2022 QCTP 6).
In support of his factum filed with the Professions Tribunal aiming to contest the decision that had been rendered by the Bar of Québec’s Comité des requêtes, the lawyer asks the Tribunal for permission to add stenographic notes or the recordings of the hearing that had taken place before the Comité. The lawyer invokes that after having read the stenographic notes communicated by the opposing party in support of their factum, he realized that many passages of the text referred to the recording being “inaudible”. In addition, he claims that there are several erroneous interpretations made by the stenographer who had prepared the transcript. The lawyer states that these inaccuracies have a major impact on the testimony that he had given before the Comité. To support these claims, the lawyer refers to a new transcript, prepared by a second stenographer, and asks the Tribunal to allow him to file these new notes in order to complete his factum.
This position is contested by the Bar of Québec’s syndic, who argues that the stenographic transcript has a reliable and quasi-official status and that it is up to the lawyer to demonstrate that any inaccuracies that may exist are significant enough to justify that the transcript be removed from the file and replaced by new stenographic notes.
To begin, the Professions Tribunal confirms the principal established by the Court of Appeal according to which the reliability of stenographic transcripts is necessary in order to ensure a fair and proper administration of justice. For this reason, the notes transcribed by an official stenographer benefit from having an authentic status, as official stenographers are considered judicial officers. All notes transcribed by an official stenographer are thus presumed valid.
The Professions Tribunal also confirms that it is up to the party hoping to successfully contest the validity of a transcript to not only identify the imprecisions or inaccuracies that it contains, but also to demonstrate that they are susceptible of influencing the outcome of the appeal. In absence of such proof, the probative value of the notes is presumed.
Upon having revised the differences between the two versions of the notes as were pointed out by the lawyer, the Tribunal concludes that he had failed to demonstrate the impact that these minor - even anecdotal – inaccuracies could possibly have on his appeal. Consequently, the lawyer’s application to complete his factum is dismissed Dubé Légal inc., disciplinary law lawyers.
