Crib case dismissed for delay, no judicial notice of unceded territory, and court COVID measures ending

This week on Legally Speaking with Michael Mulligan:Unlike criminal cases, where there is always a next appearance date scheduled in court until a case is completed, civil cases are generally moved along by the plaintiff. The case discussed on the show involved a civil claim resulting from an apparently defective drop-side crib. The issue was identified in 2009 and resulted in the crib manufacturer recalling the cribs. Several proposed class actions were also filed in different provinces.In BC, a proposed class action was filed one day after the recall of the cribs was announced. A couple of years after the BC case was commended, the plaintiff asked the court to be replaced as the proposed representative plaintiff because of family and work time commitments. The judge managing the case denied the application to change plaintiffs, in part because the original plaintiff still had the crib, which the defendants wanted to have examined by an engineer. Approximately 8 years then passed without any meaningful steps being taken by the plaintiff to move the case forward. The defendant crib manufacturer eventually applied to have the case dismissed for “want of prosecution”. The test when this kind of application is made involves consideration of the length of the delay, explanations for the delay, an assessment of whether the defendants suffered prejudice and finally the judge deciding if the balance of justice requires the action to be dismissed. The case discussed was dismissed both because of the amount of time that had passed and the fact that the crib in question had inexplicably been lost, before it was examined by the defendants. Also, on the show, the lawyer for an accused person in a criminal contempt prosecution relating to the alleged blocking of a driveway at a “tank farm” in Burnaby, contrary to an injunction prohibiting interference with the Trans Mountain Pipeline, asked the judge to take judicial notice that the activity occurred on “unceded indigenous territory” or “indigenous territory”. In criminal cases, ordinarily, evidence of an alleged fact needs to be called if a party wants a judge to take it into consideration.  Judges can, however, take judicial notice of facts that are clearly uncontroversial without requiring evidence.To take judicial notice of something a judge must be satisfied that a fact is 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. While the judge agreed that it’s obvious that indigenous people occupied some parts of BC before Europeans arrived, the assertion that the driveway in question was either “unceded” or “indigenous territory” was not a notorious fact. The judge rejected the claim that the territorial acknowledgements often used by politicians could be the basis for taking judicial notice of the alleged fact: “In any event, I hardly think that statements by politicians, which may be made for any number of reasons and not for the purpose of court proceedings, can be taken as a readily accessible source of indisputable accuracy.”While it’s unclear that the claim the driveway in question was unceded indigenous territory will have any relevance to the criminal contempt trial, if the defendant wishes to rely on this assertion, they will need to call evidence to establish it. Finally, on the show, courts in BC have announced that many of the COVID safety protocols that were put in place at courthouses will be removed as of April 11, 2022. Follow this link for a transcript of the show and links to the cases discussed.