Friday, June 5, 2015

Adverse Inference from Failure to Call Evidence

Lawyers' Professional Indemnity Company v. Geto Investments Limited, 2007 CanLII 27756:

[93]        Where a party fails to call a witness and an explanation is not provided, the court may but not must draw an adverse inference.

[94]        Where a party has an evidentiary burden of establishing an issue, his failure, in certain circumstances, to call necessary evidence to support his case justifies a court in drawing the inference that the evidence of the witness who might have been called would have been unfavourable to him.  The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavourable to the party's case.

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