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
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
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