Recently, I was in Morning Chambers waiting (patiently) for my turn to argue. Before my case was called, a number of foreclosure matters were heard. I'd like to credit counsel, the mortgagees, and the Court for the typical and widespread practice of permitting owners to remain in their homes over the holiday season, which occured that day. All this is ordinary.
In two of the foreclosure cases, something unusual occcured. Two separate homes at risk of foreclosure were transferred to the same third party corporation. The corporation promised to pay the arrears on the mortgage and keep it current, and permit the former homeowner to stay in residence in exchange for rent. As the Master quite rightly said, there's nothing wrong with this. But in both these cases, the corporation failed to do anything to stop the foreclosure of the property, all the while collecting or attempting to collect rent. The former homeowners turned renters then lost their homes, lost the ability to redeem their mortgages, and lost the opportunity to save up to rent another home. The Court in both cases permitted the individuals to stay in the home for some period, but the damage had already been done.
What I found particularly interesting is a matter of evidence. This was not the first time this particular corporation had been before the Master. In fact, the Master said he had seen this corporation do this "15 to 20 times" in his Court room alone. The Master refused to hear from the officer on behalf of the corporation, who was not a lawyer. Permitting arguments from a non-party who is not a lawyer is within the Court's jurisdiction. In deciding this, however, the Master considered his own previous experience with this corporation and its officer.
Judicial notice is a rule of evidence that allows a fact to be admitted as evidence if that fact is well known or indisputable; there is no need for a party to adduce evidence to prove such a fact. This is typically done at the request of a party. It's often done for common sense facts, for example, it can be cold in the winter in Calgary.
Famously, Abraham Lincoln relied on judicial notice as defence counsel in the case of William Armstrong. The prosecutor's witness claimed that he could see the crime by the light of the full moon; Lincoln used an almanac to prove that the moon was not bright enough that day to provide adequate lighting. The accused was acquitted as a result.
It was interesting for the Master in Chambers to take judicial notice of his own experience with a party and an individual of his own volition. I also suggest it was pragmatic and reasonable to do so - hearing from the individual would not likely have changed the result and would have simply resulted in a waste of the Court's time.
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