CHAPTER 3

Archived Content

Information identified as archived on the Web is for reference, research or recordkeeping purposes. It has not been altered or updated after the date of archiving. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, please contact us to request an alternate format.

EVIDENCE

3.3 Admissibility of Evidence

3.3.1 Judicial Notice

Judicial notice is a court's or tribunal's personal recognition of certain generally known facts whose accuracy cannot be reasonably questioned; in other words, they need not be proved. The court or tribunal should take notice of such facts on its own.^{430 Citation 430} In French, the term is known either as "connaissance d'office" or "connaissance judiciaire."^{431 Citation 431} The Civil Code of Quebec states the principle as follows: "Judicial notice shall be taken of any fact that is so generally known that it cannot reasonably be questioned" (art. 2808) art. 2808 of the Civil Code of Quebec.

Notice is taken of the law and certain facts. Tribunals take notice of their enabling statute, general laws and regulations and easily accessible cases, and may do their own legal research without depending on the parties.^{432 Citation 432} One such instance of this would be where the parties are not represented by counsel. However, it has been suggested that if a tribunal or court intends to rely on cases the parties have not cited, the cases should be disclosed to the parties so they have the opportunity to comment them.^{433 Citation 433} This situation would not arise frequently before a Board of Referees.

The first kind of facts of which notice is taken are facts generally known to the public.^{434 Citation 434} The second, noticed by specialized tribunals, are generally known facts, and information and opinions that fall under the tribunal's area of expertise.^{435 Citation 435} This rule is sometimes expressly set out in a statute.^{436 Citation 436}

Judicial notice must be used with caution and should not be the basis for a tribunal to bypass or ignore reliable or uncontradicted evidence. Y. Ouellette recommends the following precautions:

[Translation] Certain precautions should be taken to prevent judicial notice from being challenged. If a decision-making body intends to use a physically identifiable information source such as a public document, it should give notice of its intent to do so and allow the parties to refute or comment it, unless the information is routine or some other solution is justified by exceptional circumstances and the public interest.^{437 Citation 437}

Y. Ouellette further states:

The problem is naturally more complex when the information source is not physically identifiable, as with memory or experience acquired over time. In quasi-judicial proceedings, knowledge is key to assessing the evidence and an expert should not be expected to act as a novice. However, when this knowledge is used to counter evidence or in place of evidence, the parties are taken by surprise. Decision makers should generally give them notice that they intend to use this actual or purported knowledge so that it may be challenged.^{438 Citation 438}

We believe the last comments are difficult to apply. It would seem rather onerous to require a tribunal to reopen the hearing and seek the parties' comments. If the experience gained by members of a tribunal in its field of expertise is involved, it is difficult to imagine how it could be the basis of argument at the hearing. Judicial notice should not be confused with evidence gathered in a private investigation conducted by the tribunal or one of its members. This kind of evidence would simply have been gathered or obtained unbeknownst to the parties.

A tribunal should not allow specific information into the docket unless expressly authorized by law like boards of referees under s. 82 of the EI Regulations Section 82 of the EI Regulations.^{439 Citation 439} It should not conduct a personal or private investigation into a case before it, by means of private or secret interviews with a party. Such an initiative would violate the principle of natural justice. Tribunals are bound by a constant duty of transparency.

It is not uncommon for tribunals to consult general dictionaries and manuals.^{440 Citation 440} Some say that specialized or technical publications in fields such as medicine, engineering or chemistry do not contain the kind of evidence that a tribunal can judicially notice. In our opinion, a clear distinction should be drawn between situations where such works are consulted to gain an understanding of expert evidence and situations in which they are used to refute it. In the latter cases, tribunals should be very careful. They should advise the parties and even reopen evidence if necessary.^{441 Citation 441}

Visits made by tribunal members without the parties being present or knowing about the visits may be likened to judicial notice. They could be considered unfair or suspect if they are intended to serve as evidence rather than a means by which to understand the evidence tendered by the parties at the hearing.^{442 Citation 442} If a visit is necessary, the parties should normally be allowed to attend so that it can be in the record as evidence. The tribunal could order it, if necessary. We doubt that it could be useful to a Board of Referees.

[ previous Previous page | table of contents | next Next page ]