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Evidence - Judicial Notice (3). Smith v. Taylor
In Smith v. Taylor (Ont CA, 2024) the Ontario Court of Appeal briefly set out a test for judicial notice:[86] Courts may take judicial notice of facts that are: (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: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48. The appellant’s request meets neither criterion. . S.E.T. v. J.W.T
In S.E.T. v. J.W.T (Div Court, 2023) the Divisional Court, in allowing an appeal, reviewed recent COVID-specific judicial notice doctrine established in the leading COVID case of J.N. v. C.G. (Ont CA, 2023):[9] As further set out below, J.N. v. C.G. states that courts should take judicial notice of regulatory approval and recommendation of COVID-19 pediatric vaccination, and that regulatory approval is strong evidence that the vaccine is safe and effective. Further, evidence submitted to contradict Health Canada’s position must meet the criteria for expert evidence. The question of vaccine safety and efficacy requires scientific expertise. The problem with the father’s motion is that he has not provided any expert evidence to interpret the information he seeks to admit. In the face of Health Canada’s ongoing approval of COVID-19 vaccination for children, and without any expert interpretation of the significance of the father’s information, none of the information he seeks to admit could reasonably be expected to affect the result of the motion. Therefore, the motion is dismissed.
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Did the motion judge err by refusing to take judicial notice of regulatory approval?
[11] The motion judge in this case erred by failing to apply principles set out in J.N. v. C.G. The first error related to his refusal to take judicial notice of regulatory approval of the vaccine. While taking judicial notice is generally discretionary, the motion judge’s reasons were released shortly after the Court of Appeal’s decision. The Court of Appeal noted that “it is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment,” special knowledge going beyond that of the trier of fact. The court therefore stated, at para. 45, that judicial notice “should” be taken of regulatory approval, and “regulatory approval is a strong indicator of safety and effectiveness.” The court emphasized that COVID-19 kills people, including children, and stated that it was unrealistic for parties to relitigate the question of vaccine efficacy each time there was a disagreement about it.
[12] In this case, the motion judge declined to follow this guidance. Contrary to the Court of Appeal’s approach, the motion judge stated, at para. 358, that “what public health authorities have been saying is evidence simply of the fact that the public health authorities have been saying that vaccines are ‘safe and effective.’” 2 [2 J.W.T. v S.E.T., 2023 ONSC 977.] He therefore was of the view that he could not take judicial notice of vaccines being safe and effective: at paras. 394 and 520. Similarly, he stated, at para. 466, that he may not be prepared to “take judicial notice of a ‘fact’ based on what is clearly speculation.”
[13] In the specific circumstances of this case, his refusal to take judicial notice of regulatory approval constituted a material error in the appreciation of the facts. He was addressing the same regulatory approval in the context of the same pandemic immediately after the release of the Court of Appeal’s decision. There was no factual distinction that justified a different approach.
[14] Further, in his approach, he erred in principle by relying on information that was not properly before him in evidence, contrary to the guidance in J.N. v. C.G. He used this information to question the validity of regulatory approval.
[15] J.N. v. C.G. underscored the importance of relying only on admissible expert evidence when assessing vaccine efficacy. The motion judge in that case had erred by failing to assess whether documents relied on by the party objecting to vaccination were independent, unbiased, and authored by someone with expertise in the area. The court stated, at para. 19, that the information relied on by the objecting party “was nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all.”
[16] Here, the motion judge stated that he was avoiding this problem by not relying on the inadmissible evidence for the truth of its contents: at para. 619. He instead relied on it to state that “reasonable people” disagreed with public health authorities about the effectiveness of the vaccine. Therefore, in his view, judicial notice should not be taken of the vaccine’s effectiveness.
[17] To reach this conclusion, however, he needed to be sufficiently satisfied that the competing authorities were authored by “reasonable people” with sufficient expertise to raise doubts about the conclusions of public health authorities. He did not make this assessment on evidence that was before him. He stated, at para. 446: “[W]hen individuals who appear to be “prima facie experts” in the field are questioning the very premise of which a court being asked to take judicial notice…the court should at least consider this in the analysis of judicial notice.”
[18] The only person the motion judge named as a “prima facie expert” was Dr. Robert Malone. The father did not submit any evidence from Dr. Malone. There is no article by Dr. Malone, much less an affidavit or curriculum vitae. Instead, the motion judge appears to have relied on previous motion decisions, such as the decisions in J.N. v. C.G. (which was overturned on appeal) and Rashid v. Avanesov, 2022 ONSC 3401. He stated that “other courts” had recognized Dr. Malone as the inventor or founder of the mRNA vaccine. However, the motion judge in Rashid raised the risk of relying on Dr. Malone’s evidence. The Court of Appeal in J.N. v. C.G. also specifically rejected the findings of the motion judge in that case regarding Dr. Malone. The court stated that it was unclear how anyone could conclude from the material filed that Dr. Malone invented the mRNA vaccine or that he was a leader in the field.
[19] In other words, the only expert named by the motion judge as a “reasonable person” was dismissed by the Court of Appeal due to the absence of evidence justifying any reliance on his views. In these circumstances, it was an error for the motion judge to rely on Dr. Malone’s “prima facie” expertise to discount the conclusions of public health authorities.
[20] The motion judge also erred by relying extensively on events and personal observations rather than on the evidence before him. His error here was similar to what occurred in J.N. v C.G., in which the Court of Appeal stated, at para. 23, that “instead of conducting a meaningful analysis of the appellant’s material, the motion judge simply cited historical events … as a reason not to place reliance on government sources generally.”
[21] A similar problem arose here. The motion judge in this case wrote for several pages about events and information not arising from the evidence. His observations were either generic and inapt comments on public events or, if more specific, not founded in the evidence before him. They included the following:. The Chief Medical Officer for Ontario had held a press conference recommending the wearing of masks but then was seen at a public event not wearing a mask: at paras. 425-29.
. Government messaging at the time of the Thalidomide drug was clearly wrong: at paras 470-72.
. Legislation in other countries provides immunity to pharmaceutical companies regarding vaccines: at paras. 478-80.
. The media and government continued to allow tobacco and alcohol companies to advertise even when it became known that they harmed people’s health: at paras. 486-89.
. Dr. Malone should not be discounted because he was banned from Twitter for spreading “misinformation”: at paras. 501-11.
. The court had concerns about the mainstream media promoting a “narrative”: at paras. 516-19. [22] The motion judge also stated that it appeared the mRNA vaccine was different from “conventional vaccines” and that the timeline in its “invention” and testing was far shorter than for other vaccines: at para 481. The record included one internet article citing Dr. Anthony Fauci as saying there was insufficient time to complete a clinical trial on an “updated vaccine.” The motion judge did not cite the article nor assess its independence or reliability.
[23] The motion judge relied on the observations set out above, among others, to conclude that he should not take judicial notice of regulatory approval. Particularly in the face of the significance placed on regulatory approval of the vaccine in J.N. v. C.G., it was an error to refuse to take judicial notice of it based on evidence that was either not before him or without having assessed the source of the information.
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