Petrelli v. Lindell Beach Holiday Resort Ltd., 2011 BCCA 367

In Petrelli v. Lindell Beach Holiday Resort Ltd., the court held that pleadings from another, similar, action are not properly the subject of “judicial notice” as the concept is strictly understood. While a judge may be entitled to take notice of records not directly before her, and may be entitled to use them as evidence, she should not normally do so without advising the parties, thus giving them an opportunity to address the issue raised.

The Petrellis had brought an action for the rescission of their contract with the appellant trail park operator. Previously, the Petrellis' friends, the Bahrys, were successful in a claim for the rescission of their contract with the appellant. The Bahrys had brought their claim under highly similar circumstances and on the same grounds as the Petrellis were now claiming. Accordingly, the Petrellis argued that their contract had already been interpreted by the court and that it was an abuse of process to defend the current action. The appellant owners argued that there was no basis for a finding that their defence had already been raised, argued, and determined in the Bahry case. Accordingly, the appellants asked the Court to take judicial notice of the Bahry pleadings. Justice Groberman found that the Bahry pleadings had not become evidence in the court below: neither party had drawn the judge’s attention to them, nor did the judge indicate an intention to examine them. Since no formal or informal step had been taken to include the Bahry pleadings in evidence, the court could not now take “judicial notice” of them. According to Justice Groberman, judicial notice covers matters of general knowledge, or matters that are easily ascertainable by anyone through widely available, accurate, sources. When judicial notice is taken of such facts no one is taken by surprise. Further, such facts cannot be practically challenged. Justice Groberman went on to hold that the contents of court records are not matters of general knowledge and there are limits on the court taking “judicial notice” of its records. A judge may consult court records that are not directly before her and rely on them as evidence. However, she should not normally do so without first advising the parties and giving them a chance to address the issue raised.

While the court refused to take judicial notice of the Bahry pleadings, they were nonetheless allowed to be adduced as fresh evidence on appeal. The court went on to hold that the appellants’ raising of the non-conforming use defence did not constitute an abuse of process. According to Justice Groberman, the focus of the doctrine of abuse of process is on the integrity of the adjudicative functions of the court. The re-litigation of issues is an inefficient use of judicial resources, and the possibility of inconsistent judgements diminishes the credibility of court judgements. According to the Court, both cause of action estoppel and issue estoppel, the two branches of res judicata, are concerned with preventing abuse of process. While cause of action estoppel is focussed primarily on fairness to litigants, issue estoppel is primarily concerned with the integrity of the judicial system. However, the court held that there may be some overlap between the two concerns.

September 7, 2011
Link to Decision

Fidelia Ho & Steve Holinski
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