When parties want to rely on facts in court they need to prove them with evidence. However, some facts are so well known that judges can take “judicial notice” of them instead of requiring proof. R. v Find, 2001 SCC 32 tells us that: “a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.”
During the current global pandemic, information about COVID-19 seems to be everywhere. Parties may wonder what information requires evidence and what information has become so pervasive that a court will take judicial notice.
J.E.S. v. S.S., 2020 ONSC 6064 provides some guidance on this subject. The Applicant asked the court to take judicial notice of fifteen facts about COVID-19. The Court agreed to take judicial notice of four of them:
- “COVID-19 is a highly contagious, life-threatening, respiratory disease that attacks adults and children; [i]t spreads through person to person contact and can also be spread through touching surfaces;
- Cases in Ontario are on the rise again;
- Public Health rules, protocols and warnings must be followed; and
- Public Health requirements are intended to protect all members of the public.”
However, the Court refused to take judicial notice of:
- Information that required medical evidence to prove, for example, the assertion that “[a[dults and children with certain pre-existing conditions are more at risk for the disease to be life-threatening; these conditions include heart disease, diabetes, asthma, and weak immune systems (immune-compromised)”;
- Incorrect information;
- Facts that were already in evidence through affidavits;
- A list of COVID-19 symptoms because they were not “notorious” and the list presented differed from the list on the Ontario government’s website;
- The Toronto District School Board’s list of COVID-19 precautions since the information was not “notorious nor… readily supported by sources of indisputable accuracy”; and
- A summary of by-laws from the City of Toronto and orders from the federal government since “the full text of these instruments [was] available online.”
J.E.S. v. S.S., 2020 ONSC 6064, sheds some light on judicial notice of COVID-19 facts. However, parties should proceed cautiously. Different judges will have different ideas of what facts meet the definition of judicial notice. This is especially true in the COVID-19 environment where knowledge about the virus continues to grow and guidelines continue to evolve. To be safe, parties should present evidence to support the COVID-19 facts they wish to rely on in court rather than relying on judicial notice.
This blog post was written by Kathleen Broschuk, a member of the Family Law team. Kathleen can be reached at 613-369-0362 or at kathleen.broschuk@mannlawyers.com.
