Drawing An Adverse Inference From Failure To Call Witness Limited By Court of Appeal

A popular trial technique is to assert that the failure to call a material witness, otherwise within the power of a party, ought to lead to an adverse inference that the evidence of that witness would be unhelpful for the party: Blackburn v Midland 2005 CarswellOnt 671 (OCA) 14.

Specifically, an unfavourable inference can be drawn in circumstances where a party has failed to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not offer an explanation for the failure to do so. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it: Sopinka & Lederman, The Law of Evidence in Canada, 2nd. ed. (Toronto: Butterworths, 1999) at 297.

Although a popular technique, the argument that an adverse inference should be drawn has powerful limitations. The courts are alive to the fact there is no property in a witness and if someone should be called, usually, either party can call that witness: Vescio v. Garfield 2007 CarswellOnt 4243. The fact a witness may be hostile is no bar to calling that witness.

Additionally, the decision by the Court of Appeal in 365 Bay New Holdings Limited v. McQuillan Life Insurance Agencies Limited, 2008 ONCA 100 placed another limit on the use of adverse inference. The Court reasoned that an adverse inference ought not to be taken where a documentary record belies that inference. Specifically, where the documents say one thing there is no obligation on a party to call a witness who will merely corroborate those documents.

The Court held:

[10] The trial judge bolstered his finding of an agreement by drawing an adverse inference against the tenant, who called no evidence on the issue. However, in our view, an adverse inference was not available on this record. The landlord’s claim of an agreement was undermined by the documentary record, which showed that there was no agreement. An adverse inference cannot add weight to evidence of a belief or understanding that is belied by the record on which it was said to be based.