Alberta Report appealed a decision of the Alberta Human Rights Panel (the “Panel”) made pursuant to s. 33 of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1980 1980, c-H-11.7. The principal issue on appeal concerned the extent to which the Panel could take notice of evidence introduced before other tribunals and whether in this instance the Panel violated the Appellant’s right to know the case to be met. The appeal was allowed and the case remitted back to the Panel for rehearing.

28. January 2003 0

Administrative law – Human rights complaints – Discrimination – Evidence – Judicial review – Natural justice – Evidence of other tribunals – Judicial notice

Alberta Report v. Alberta (Human Rights and Citizenship Commission), [2002] A.J. No. 1539, Alberta Court of Queen’s Bench, December 10, 2002, Clark J.

In the October 13, 1997 edition of its magazine, the Alberta Report published an article about a failed real estate deal involving a local developer, Mr. Schickedanz, an American promoter. At the end of the article, an uncredited source was quoted as saying:

North American commercial real estate is dominated by firms that often happen to be Jewish owned (e.g. Oshawa and Canmore Development). The retail sector is much the same. Like cliques everywhere, some of these people tend to deal with each other, and Mr. Schickedanz is an outsider.

The Jewish Defence League of Canada filed a complaint with the Human Rights and Citizenship Commission (the “HRCC”), naming the Alberta Report. Mr. Kane alleged that the article promoted discrimination and possibly hatred against Jewish people. The Panel found that the Alberta Report had violated s. 2(1)(a) of the Human Rights, Citizenship and Multiculturalism Act. In making its decision, the Panel relied on expert evidence heard by another tribunal. In introducing the evidence the Panel stated: “Although no expert evidence was called in this case, it is helpful to consider the evidence, which is the basis for previous tribunal and court decisions.”

The Alberta Report argued that the principles of natural justice were breached when the Panel took judicial notice of expert evidence that was not led in the hearing. In determining that the Panel had breached the rules of natural justice, the court focused its attention on the law of judicial notice, and how the concept is applied to tribunals.

The court noted that traditionally, judicial notice was only acceptable for: (1) notorious facts; and (2) facts capable of immediate and accurate demonstration by resort to sources of indisputable accuracy; J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at 1055. The court held that it is necessary that a court inform counsel when it intends to take judicial notice of a fact. The Court held that the Panel erred in not informing the parties of its intention to take notice of important evidence. The duty of fairness that administrative tribunals owed to those who appear before them requires that the Panel inform the parties about any evidence that it intends to consider and inform the parties of their intention to rely on expert evidence quoted in other decisions. Parties should be allowed to (1) address whether the evidence should be admitted, (2) challenge the weight accorded to the evidence, and (3) submit other evidence in rebuttal. As the Appellant was not given any opportunity to challenge the evidence, the appeal was allowed.

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