Yes No Share to Facebook
Adverse Inference:
Negative Presumptions for Failing to Present Evidence
Question: What is an adverse inference in Ontario civil proceedings, and when can a judge draw one?
Answer: An adverse inference is a discretionary evidentiary rule where an Ontario court may presume missing testimony or documents within a party’s control would have hurt that party’s case if there’s no reasonable explanation for the non-production, considering factors like control, availability, and whether the evidence is key to the issues in dispute per Parris v. Laidley, 2012 ONCA 755. Access Ontario Legal Services provides Ontario paralegal services to help you assess disclosure gaps, prepare requests for production, and frame arguments about whether an adverse inference is warranted in your specific matter.
Understanding the Principle of Adverse Inference as an Evidentiary Rule Arising from Failure to Produce Evidence
An adverse inference may arise where a party fails to testify, or where a party fails to lead evidence that is in control of the evidence, and from such a failure the court may thereby presume that the reason for the absence of the evidence or the absence of testimony is that such would negatively affect the party who fails to provide the testimony or the evidence.
The Law
The adverse inference presumption is based upon the expectation that if a party has control over evidence, the party would present the evidence unless the evidence was unfavourable to the party. The principle was well explained within the case of Tiwari v. Chevalier, 2022 ONSC 3071, as well as the case of Lane v. Kock, 2015 ONSC 1972, wherein each it was respectively said:
[28] Adverse inferences may be drawn from a party’s failure to produce relevant documents they were required to produce or should have produced. (Sarzynick v. Skwarchuk, 2021 BCSC 443, at para. 190.)
[3] The effect of the failure of a party to testify or to call a material witness or other evidence, is summarized as follows in Sydney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014) at p. 386:
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 party's case, or at least would not support it.
The adverse inference principle is discretionary and a judge is without a requirement to apply the principle where circumstances warrant. The basis for discretionary application of the adverse inference principle was explained by the Court of Appeal in Parris v. Laidley, 2012 ONCA 755, whereas it was stated:
[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.
Summary Comment
The principle of adverse inference is the legal version of saying, if you got it, then flaunt it; and, if a party fails to do so, the court may presume that a party who fails to use evidence does so because the evidence would be unfavourable.
NOTE: A significant volume of online searches for terms like “lawyers near me” or “best lawyer in” typically indicates a pressing need for effective legal assistance rather than simply seeking a particular title. In Ontario, paralegals who hold a license are governed by the same Law Society that regulates lawyers and have the authority to represent clients in specific litigation matters. Central to this position are advocacy, legal analysis, and procedural expertise. Access Ontario Legal Services provides legal representation within its licensed framework, focusing on strategic positioning, evidentiary preparation, and compelling advocacy aimed at securing efficient and favourable outcomes for clients.