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CIVIL EVIDENCE - Methods of proof - Judicial notice - Of facts

Monday, November 27, 2017 @ 8:31 AM  


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Appeal by the condominium unit owner from a decision of the chambers judge to reduce the apportionment of the sale proceeds to 14 units out of a total of 188 units. The condominium building consisted of 188 units and the attached common property. Alberta Health Services (AHS) issued notices to 14 of the units, 13 of which were owned by the appellant, because of disrepair. The appellant allowed its units to be inspected and made more than $80,000 in repairs, but did not hook up electricity to the unoccupied units. The unit owners determined that the condominium property would be sold. The court approved a sale of the property for approximately $13.3 million. An application was made to determine how the sale proceeds would be distributed. After considering a court-ordered report, the court decided that the unit factor method would be used to apportion the sale proceeds, as it was the best way to minimize the losses. The judge also determined that there should be a downward adjustment of the amount to be apportioned to the units that had been condemned and he reduced the distribution of sale proceeds to those units by 20 per cent. The appellant appealed, arguing that the judge erred in granting the 20 per cent reduction because he failed to correctly apply the test for judicial notice. The appellant also submitted that the judge erred in failing to consider refuting evidence against a deduction, and in misapprehending the facts and evidence.

HELD: Application allowed. The chambers judge erred in his application of the doctrine of judicial notice. The court could not take judicial notice of the fact that a condemned unit would be worth less than a non-condemned unit, given the factual matrix of this case. The purchaser was acquiring the complex for renovation and upgrade, was aware that some of the units were condemned and the AHS notices did not have an impact on the purchase price it paid. The chambers judge’s decision to impose a 20 per cent reduction, or any reduction, of the distribution per condemned unit was not based on facts that were either so notorious or generally acceptable as not to be the subject of debate amongst reasonable persons, or alternatively capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

Kay Kay Corp. v. Condominium Corp. No. 072 4807 (Premier City Park), [2017] A.J. No. 1098, Alberta Court of Appeal, J.D.B. McDonald, B.K. O'Ferrall and B.L. Veldhuis JJ.A., October 19, 2017. Digest No. TLD-November272017001