Drawing an adverse inference from the failure to call evidence

 In the adversarial trial system, a party in a civil case has an absolute right to withhold a source of evidence from the court; but if the issue may determine the case and the opponent's evidence is strong enough to call for a reply, the failure to call evidence may cause the trier of fact to draw an adverse inference.  So, if an obvious witness is not called to testify and no explanation of why the witness is not called is given, the court may infer the witness would prove unhelpful.  That said, as the chart below shows, the inference is seldom fully drawn.

 

A party's unexplained failure to call an important witness may provide the basis for such an inference. An adverse inference will be drawn against a party only if the opponent is able to establish a prima facie case requiring the party to disprove it or run the risk of losing the case. The inference is that the missing evidence would be contrary to, or at least not support, the party's case.

 

Thus, in Levesque v. Comeau   [1970] S.C.R. 1010 the Supreme Court, speaking of a plaintiff’s failure to call a witness said:

She alone could bring before the Court the evidence of those facts and she failed to do it. In my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case.

 

Other reasonable inferences may be drawn from the established facts concerning what the missing facts might have been.

 

No adverse inference will be drawn if the party can offer a reasonable explanation for failing to call the evidence.

 

Recent Ontario Cases Dealing With Calling a Witness

 

No Inference                                                                Inference

Favuzzi v. West Arthur 2009 ONCA 337	Gouvera v. Toronto Star 1998 CarswellOnt 3653
Magnussan Furniture v. Mylen 2008 ONCA 186
Dwyer v. Mark II (2006), 208 OAC 305
LLP v. Hong Kong 2003 CarswellOnt 2011

 

Today’s decision in R. v. Lapensee, 2009 ONCA 646 deals with the adverse inference that may be taken when a witness is not called.  The Court notes:

[41]         In certain circumstances, a trier of fact may draw an adverse inference from the failure of a party to call evidence. In R. v. Jolivet, [2000] 1 S.C.R. 751, at para. 25, Binnie J. cited the ancient rule from Blatch v. Archer (1774), 1 Cowp. 63, at p. 65:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

[42]           However, this principle is subject to several qualifications. Since the inference is one of “ordinary logic and experience”, it may only be drawn where there is not a plausible reason for nonproduction, i.e. where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable: Jolivet at para. 24; R. v. Solomon, 2002 CanLII 8965 (On. S.C.), per Hill J., at para. 32; R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at pp. 512-13. As Binnie J. explained in Jolivet at para. 28, there are many reasons for not calling certain evidence that are unrelated to the truth of the witness’ testimony:

The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate “adverse inference”.  Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. 

[43]         In addition, evidence may not be called if it would be unimportant to the case, cumulative, or inferior to the evidence already available on the relevant point: see Solomon at para. 32; Rooke at p. 518; R. v. C.R.S. (1998), 133 C.C.C. (3d) 559 (N.S.C.A.), at p. 571.

[44]         Further, the inference is stronger where the “missing proof” lies in the “peculiar power” of the party against whom the adverse inference is sought to be drawn: Jolivet at para. 27.