There is a longstanding tradition of judicial notice of facts. In essence, a fact is accepted as established without any party bringing evidence to prove the fact. It is a way to increase efficiency, rather than parties having to prove what is obvious. In Canada, it is typically used for facts that are so notorious that they cannot be the subject of reasonable dispute. Parties may not have the opportunity to receive advance warning or challenge, through cross-examination, facts established through judicial notice and as such, it is used with caution.
Judicial notice of a historical or societal fact can be viewed as both progressive and desirable. In Canada, courts have taken notice of the existence of systemic anti-black racism in Canadian society for several years, applying in the setting of jury selection and sentencing in criminal cases. It is less common in civil cases, but a recent case shows that it can and will be used where appropriate.
In the case of 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371, the Court of Appeal upheld a judgment in which judicial notice was taken of the existence of anti-black racism in Canadian society.
In the case below, Justice E.M. Morgan heard a request by a commercial tenant for an injunction and relief from forfeiture to avoid being evicted.
The tenant had failed to submit a written notice to exercise its option to renew its lease on time, but had stayed on as an overholding tenant for approximately 3 years. The tenant was a wife and husband who operated a restaurant and bar offering African/Black/Caribbean culture foods primarily to a Black community customer base. The tenant invested $150,000 in improvements to the property. The tenant continued to pay rent on time, even during the pandemic.
The landlord brought forward affidavits alleging that the tenant’s business did not attract “family-oriented customers” as well as descriptions of conduct of individuals which “might be considered almost a caricature of racially derogatory themes”. In weighing the equities, the tenant had its investment in the unit whereas the landlord had its subjective view of what it called an “unattractive” tenant.
Justice Morgan held that the prejudice the landlord alleged is “not one which carries weight” in considering a balance of equities. The landlord argued that there was no evidence that the landlord was racially motivated. Justice Morgan held that motivation – whether the landlord was aware of its own subconscious attitude and its effect – is not the point. Justice Morgan held that the societal realities pertaining to Black businesspeople must be factored into the exercise of discretion in considering equitable remedies and held that the equities weighed in favour of the tenant.
The landlord appealed. The Court of Appeal for Ontario concluded that Justice Morgan was entitled to take judicial notice of anti-Black racism in Canada. Further, Justice Morgan was entitled to conclude that racism was relevant to the refusal to negotiate a renewal.
The law of equity involves, in a broad sense, striving to assess and provide fairness. Racism involves unfair treatment. This case is a reminder to parties and their counsel to consider and address the effect of racism not just in jury selection or sentencing, but also in commercial settings.