December 2, 2023- If the bailiff can only make purely material findings, excluding any opinion on the factual or legal consequences that may result, his finding must not appear in the eyes of some as a restriction. Indeed, the definition of the role of the bailiff is, on the contrary, the strength of his observation. This strength emerges from the relevance of the facts found. The importance of the finding remains linked to its usefulness, which is considerable. The bailiff's ascertainment is nothing more or less than a legal photograph that preserves the memory of the facts which, without this report, could fade over time.
This evidence is preserved with the authority, seriousness and objectivity that goes with the office of a judicial officer who draws up a report on his oath of office. This makes it difficult to contest and may require, if necessary, the filing of a motion for a feasible forgery before the appropriate court.
The bailiff is not an ordinary witness, but rather a neutral and impartial witness whose statement of fact gives a credible version of the facts that took place before him.
At trial, subpoenaed witnesses may intentionally or unintentionally forget important and relevant facts. They don't necessarily remember the same things anymore. A divergence on factual situations may also be frequently encountered.
The accuracy of the statement of fact can make it possible to correct this deficiency, as the date, time and observations are recorded in its report, which may be accompanied by relevant photographs and/or video films.
Sight is the most common sense used to make observations and is, in my opinion, the one that seems to be the least controversial.
Observe the presence of:
is purely visual findings that are very difficult to contest validly.
However, caution should be exercised when the senses of smell and taste are engaged. Indeed, an excessively foul smell for one person is not necessarily so for another. Circumstances are the order of the day for taste.
A co-owner, manager or administrator can have the facts established and then meet with the interested party(ies) in order to amicably resolve any possible conflict.
Finally, the best finding remains the one that the Tribunal will not have the opportunity to read, because it has prevented a conflict, its existence having made it possible to resolve the dispute, unless the opposing party has been discouraged from undertaking unnecessary legal proceedings given the evidence thus adequately preserved over time.
François Taillefer, h.j., Adm.A.
250, Alexis Nihon,
Bureau 100
Montréal (Québec) Canada
H4R 1S1
(C) 514.831.0604
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