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Evidence - Inferences

. 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.
. Eley v. Ontario Securities Commission

In Eley v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considers the evidential drawing of inferences:
[30] Eley’s argument on this point mischaracterizes the basis on which inferences may be drawn. The trier of fact is entitled to draw an inference from all the evidence that the trier of fact accepts – be that evidence direct or circumstantial. On review, the question is whether there was a sufficient basis in the evidence to draw the inference in question. The test, on review, is whether an inference is “reasonably and logically drawn from a fact or group of facts established by the evidence” (Finkelstein v. Ontario 2016 ONSC 7508, paras. 17-20 (Div. Ct.); rev’d in part on other grounds: 2018 ONCA 61).

[31] Drawing inferences is an aspect of fact-finding. Considerable deference is accorded to findings of fact, including inferences drawn from the evidence: Housen v. Nikolaisen, 2002 SCC 33, paras. 23-25. Where an inference is “reasonably and logically drawn” they will not be “overturned by a reviewing or appellate court just because there are other inferences that could have been drawn, even if those other inferences might be said to be more persuasive” (Finkelstein v. Ontario 2016 ONSC 7508, paras. 17-24 (Div. Ct.); rev’d in part on other grounds: 2018 ONCA 61).
. R. v. Spicer

In R. v. Spicer (Ont CA, 2023) the Court of Appeal addresses the entitlement of a trial judge to draw inferences:
[10] A trial judge is entitled to draw reasonable inferences from the facts that are presented. It was open to the trial judge to draw the inference that he did from the facts that were before him. A different factual scenario might not allow for such an inference. But it was the trial judge’s job to decide on the available inferences, and to do so without being labelled as having engaged in myth-based reasoning. While we accept that the trial judge’s reasons were not as clear as they might have been on this point, ambiguity is not sufficient to establish error. As was observed in R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at para. 79:
Where ambiguities in a trial judge's reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error. [Citations omitted.][2]
. R. v. Stennett

In R. v. Stennett (Ont CA, 2021) the Court of Appeal (Watt JA) considered evidentiary inferences:
[53] Second, drawing inferences.

[54] A trier of fact may draw inferences from the evidence adduced at trial. However, the inferences must be ones that can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts is not a permissible inference but rather impermissible conjecture and speculation: Morrissey, at p. 209.


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