“There is, of course, nothing inappropriate about citing academic legal scholarship and much to be gained when it comes to better understanding legal concepts that may be relevant to judicial reasoning. But whether academic commentary or scholarship purports simply to describe the law or to explain it, it is not properly the subject of judicial notice – that is, it cannot be accepted as fact without proof. It is not subject to the sort of constraints that govern the use of evidence in the litigation process, and there is a risk that reliance on it may result in evidence being imported into judicial proceedings indirectly, bypassing the relevant evidentiary safeguards. See the helpful discussion of judicial notice by Brown J.A. in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 29-38.
Academic arguments should be assessed with the same sort of critical detachment as submissions from counsel. To the extent that academic arguments have a normative purpose – to the extent they are concerned with what the law ought to be rather than what it is – they are inherently controversial and properly subject to critique and challenge from other scholars. Their significance and shortcomings cannot be understood without placing them in this context. But whether scholarship is ostensibly descriptive or normative, it is improper to take judicial notice of the facts asserted or the conclusions reached.”
Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172 (CanLII) at 42-43