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Adverse Inferences- Under Utilized?

Govorcin Fisheries v Medanic Fisheries 2021 BCSC 1092 reviewed the principles relating to adverse inferences for failure to call certain witnesses or evidence without valid explanation.

It is a principle that dates back to the late 1700’s and is perhaps under utilized in estate litigation.

The matter of adverse inferences was discussed in some detail in the decision of the Court of Appeal in Rohl v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 316, at paras. 1-4:

M.K. Fuerst in The Law of Evidence in Canada (4th ed., 2009):

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails 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 explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the parties’ case, or at least would not support it.
. . .
An adverse inference may be drawn when, without explanation, a party does not give evidence or fails to call a witness who in the circumstances would be expected to favour the party and the witness would have knowledge of the facts in dispute. In such circumstances, the failure to call the witness or give testimony is seen as akin to an admission that the evidence would have been contrary to the party’s case, or at least would not support it. [At § 13.2131.]

According to the jurisprudence, an adverse inference or missing witness instruction is not “appropriate” where:

• counsel have offered an explanation for the failure to call the witness; such as a good faith belief in the unreliability of the witness; or, that the decision was a tactical one;
• the party has no special access to the witness;
• the evidence would be “unimportant to the case, cumulative, or inferior to the evidence already available on the relevant point”;
• where there is no evidence as to why the witness was not called.

Courts have held that an instruction is “appropriate” where:

• a party advises a jury or judge that the witness will be called;
• a party has greater access to the witness than the other and the witness would corroborate the party’s case in a significant respect; or, “where the accused in his own testimony first raises the corroborative significance of the witness to his defence”. [At § 33.10.30.]

These apply with varying degrees of strictness in civil actions.

In Jolivet, Binnie J. emphasized that one must be “precise” about the exact nature of the adverse inference sought to be drawn, endorsing the suggestion made in the Lederman text that in Canada, the inference is generally that the evidence of the absent witness would not support or, more significantly, that it would be contrary to the evidence of the party involved. In the criminal law context, therefore, courts must be particularly careful to ensure that an accused’s right to remain silent is not breached by the drawing of an adverse inference and that the onus of proof is not mistakenly shifted to the accused.

A considerable number of cases now reinforce the view that there is no such thing as a “mandatory adverse inference” to be drawn where a party fails to call a witness. Rather, the question of whether to make such an inference seems to depend upon the specific circumstances, in particular whether:

• There is a legitimate explanation for the failure to call the witness;
• The witness is within the “exclusive control” of the party, and is not “equally available to both parties”; and
• The witness has material evidence to provide; and
• The witness is the only person or the best person who can provide the evidence.

Essentially, the decision to draw an adverse inference is discretionary and premised on the likelihood that the witness would have given harmful testimony to the party who failed to call him or her.

See also Davison v. Nova Scotia Government Employees Union 2005 NSCA 51 at para. 74; O’Connell (Litigation Guardian of) v. Yung 2012 BCCA 57 at para. 75, citing Rimmer (Guardian ad litem of) v. Langley (Township) 2007 BCCA 350 at para. 30; R. v. Degraw 2018 ONCA 51 at para. 35; Parris v. Laidley 2012 ONCA 755 at para. 2; Gough v. C.R. Frankenham Backhow Services Ltd. 2008 NSCA 38 at para. 48; McWilliams, supra, at § 33.10.30.

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