Sarzynick v Skwarchuk 2021 BCSC 443 held that the defendant who was found to have strategically refused to disclose and produce financial documents could be held to an adverse inference that he had in fact siphoned off monies from his parent’s assets over several years as alleged by the plaintiffs.
The court stated that strategic non disclosure is a risky strategy which typically attracts adverse consequences to the non disclosing party
The court followed the BCCA case of Weintz v Weintz 2014 BCCA 118 in that regard.
Weinst stated:
Non-disclosure of relevant information that is in the possession and control of a party, and is necessary for the determination of an issue in the litigation, is a risky strategy. It has typically attracted adverse consequences to that party. In Kowalewich, Huddart J.A. stated that a trial judge must fix the amount of the compensation order based on the evidence before him when he orders a division in specie of family assets (at para. 21). He cannot ignore evidence because it may be difficult to assess. I would add that he cannot avoid making a necessary order to finalize the litigation because of a lack of evidence in the possession and control of a party that the party may choose not to tender. The making of a compensation order must also be distinguished from an order regarding its terms of payment. The latter is an ancillary order that may be addressed, through terms and conditions, after the compensation order is made.
[44] A similar reasoning may be found in Hausmann v. Klukas, 2009 BCCA 32, 91 B.C.L.R. (4th) 201 at paras. 51-52, leave to appeal ref’d 2009 S.C.C.A. No. 135, where this Court held that the onus was on the payor of child support to provide the necessary evidence that his corporation’s pre-tax income was not available for that purpose. In that case, the payor’s failure to meet that onus resulted in a presumption that the corporation’s pre-tax income was available to the payor for child support.
The Judge in Sarzynick v Skwarchuk followed Le v Milburn (1987) BCJ 2690 at para 2:
“When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame.”
