Drawing adverse inferences from failure to produce evidence

Parris v. Laidley, 2012 ONCA 755 makes clear that drawing an adverse inference from a failure to produce evidence is dangerous. Such should only be done if it is very clear the evidence should, could and ought to have been called. The dangers of such an inference being overturned on appeal suggest it may be prudent not to seek they be drawn. The Court holds:

[2]          Drawing adverse inferences from failure to produce evidence is discretionary.  The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case-specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for failing to call the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties, and whether the witness has key evidence to provide or is the best person to provide the evidence in issue.

[3]          In this case, the motions judge failed to take into account all relevant evidence in determining that the conditions precedent to drawing the adverse inference had been met. In particular, he made no findings concerning the credibility of the defendant's evidence that supported his position that his son had no consent, express or implied, to drive the automobile on the occasion in issue.    The evidence, if accepted, gave rise to a strong inference of lack of consent. It was an error to draw an adverse inference without assessing this evidence.