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Evidence - Adverse Inference. Kilback v. Canada
In Kilback v. Canada (Fed CA, 2023) the Federal Court of Appeal considers factual inferences, including adverse inferences:[61] A failure to file evidence on the points in issue without a reasonable explanation may lead to an adverse inference: Apotex Inc. v. Merck & Co. Inc., 2004 FC 314 at para 28, aff’d 2004 FCA 298; Riva Stahl Gmbh v. Bergen Sea (The), [1999] F.C.J. No. 762 (QL), 243 N.R. 183 (CA) at para. 11. The judge may make inferences of fact based on undisputed facts before the Court, provided they are strongly supported by the facts: Lameman at para. 11, citing Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, 178 D.L.R. (4th) 1 at para. 30. . Gambin Estate v. Di Battista Gambin Developments Limited
In Gambin Estate v. Di Battista Gambin Developments Limited (Div Court, 2022) the Divisional Court considered an issue of adverse inference:[8] The decision to draw an adverse inference or not to do so lies in the discretion of the trier of fact and is a matter of judicial discretion. We see no palpable and overriding error in the motion judge’s refusal to draw the inference urged on him by the appellant. . Coastridge Enterprises Ltd. v. Canada
In Coastridge Enterprises Ltd. v. Canada (Fed CA, 2022) the Federal Court of Appeal comments on adverse inferences:[8] The decision whether to draw an adverse inference is a discretionary matter for the trial judge. Whether "“an adverse inference is warranted on particular facts is bound up inextricably with the adjudication of the facts”": Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236 at para. 107, quoting from Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 at para. 73. Therefore, absent an extricable error of law, the standard of review is palpable and overriding error. . Wood v. Canada
In Wood v. Canada (Fed CA, 2022) the Federal Court of Appeal considers when an adverse evidentiary inference may be drawn:[23] A decision to draw an adverse inference is a discretionary matter for the trial judge. Whether "“an adverse inference is warranted on particular facts is bound up inextricably with the adjudication of the facts”": Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236 at para. 107, quoting from Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221 at para. 73. . R. v. A.M.
In (Ont CA, 2022) the Court of Appeal considered principles of adverse inference in evidence law:[34] Two principles relating to adverse inferences are important. First, the drawing of adverse inferences is to be approached with great caution: R. v. Zehr (1980), 1980 CanLII 2964 (ON CA), 54 C.C.C. 2d 65 (Ont. C.A.), at p. 68. Second, an adverse inference normally arises from either a failure to call a material witness or a failure to produce material evidence: R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, at para. 45. The SCAJ does not appear to have considered or applied either of these principles before rendering her criticism of Crown counsel and of the trial judge.
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