Friday, March 25, 2011

Adverse inference not a reversal of burden of proof

HSBC Bank Canada v. Turbo Logistics Canada Inc., 2011 ONCA 234 (as well as another case released today: R. v. Bristol, 2011 ONCA 232) both hold that drawing an adverse inference due to the failure to call evidence does not amount to reversing the burden of proof:

[3]              The appellants' second submission advances much the same argument in a different form.  We do not agree that the motion judge's failure to draw the adverse inference amounted to a reversal of the burden of proof.  It seems to us that the appellants are seeking to overturn the motion judge's findings of fact and credibility in the absence of any palpable and overriding error.

No comments: