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Administrative - Evidence - Inferences. Cai Song v. Ontario Labour Relations Board
In Cai Song v. Ontario Labour Relations Board (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a labour JR, here brought against the OLRB's dismissal of the applicant's unlawful reprisal and unfair labour practice applications.
Here the court considered an adverse inference argument by the applicant:[24] The Board did not err in refusing to draw an adverse inference from the fact that two of the four decision-makers did not testify. As the applicant had led no evidence that contradicted the evidence of Ms. Zhao or Ms. Leung, Senior Director of Human Resources, the Board correctly found that there was no critical conflict in the evidence and held it would not draw an adverse inference, relying on its decision in Labourers’ International Union of North America, Local 183 v Stylux Homes Inc., 2024 CanLII 102079 (ON LRB. Further, if the applicant felt that this evidence was crucial, he could have called those witnesses to testify. . Ontario (AG) v. Ontario (Information and Privacy Commissioner)
In Ontario (AG) v. Ontario (Information and Privacy Commissioner) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought by the AG against two IPC orders that "found the Cabinet Office had control over those entries of Premier Ford’s personal cellphone call logs that related to government or departmental matters under s. 10(1) ['Right of access'] of the Freedom of Information and Protection of Privacy Act".
The court supports the IPC's use of the evidentiary principle of 'inference', here to find as a fact "that the Premier used his personal phone for government business":[28] The inference that the Premier used his personal phone for government business was a reasonable inference from other proven facts and the totality of the evidence that was available to the Adjudicator. The rules of evidence are clear that a court or other decision-maker does not require direct evidence to reach a certain finding of fact. In British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd.,2023 BCCA 70, 91 B.C.L.R. (6th) 58 (“Angel Acres”), at para. 172, the British Columbia Court of Appeal recently provided a summary of the law with respect to inferences:[172] A factual inference is a conclusion as to the existence of further facts that may, not must, drawn from a proven fact or group of proven facts: David Watt, Watt's Manual of Criminal Evidence (Toronto: Thomson Reuters, 2021) at 126; R v Munoz (2006), 86 O.R. (3d) 134, 2006 CanLII 3269 (Ont. S.C.J.) at para. 24 and note 9. “[A] judge must rely on logic, common sense and experience, taking into account the totality of the evidence, when deciding whether to draw an inference”: Rain Coast Water Corp. [v. British Columbia, 2019 BCCA 201, 25 B.C.L.R. (6th) 316] at para. 69, citing R. v Calnen, 2019 SCC 6 at para.112. If there is no evidentiary basis for an invited inference, that is, if the inference does not flow logically and reasonably from established facts, the inference cannot be drawn: J.P. at para. 341, citing R. v Morrissey (1995), 97 C.C.C. (3d) 193 at 209, 1995 CanLII 3498 (Ont. C.A.). Doing so would amount to speculation or conjecture: J.P. at paras. 339–341; Rain Coast Water Corp. at para. 69.
[173] The evidence may support more than one inference. Further, to be relevant, it “need not prove conclusively the proposition of fact for which it is offered.” It need only “render the fact it is tendered to establish slightly more or less probable” than would be the case without it: R. v Evans, 2019 ONCA 715 at paras. 184-185. [29] The Adjudicator relied on certain proven facts to draw an inference. In that regard, there was no dispute that there was no activity on the Premier’s government issued cellphone for the relevant periods. Further, it was undisputed that the Premier would use his personal cellphone for non-personal reasons, such as, for example, publicizing it so constituents and others could call him directly. Moreover, in its submissions to the IPC, Cabinet office submitted that it was likely that “many” of Premier Ford’s personal cellphone calls were for a personal purpose or a constituency matter, and that it was speculative to conclude that “all the telephone numbers […] related to a core, central and basic functions of the Cabinet Office”.[4] Based on these facts, it was open to the Adjudicator to draw the inference that the Premier would sometimes use his personal cellphone for departmental or business matters. Put in another way, it is not “speculative” to make a factual inference that flows logically and reasonably from other established facts.
[30] The AG and the Premier argue that there was no “specific actual evidence” or “concrete evidence” that the Premier made departmental calls on his personal cellphone. Again, direct evidence is not required for a finding of fact because a decision maker can draw an inference. In addition, the Premier did not put forward an affidavit positively affirming that he refrained from making business calls on his personal phone. In many of the other IPC cases cited by the AG and the Premier, the government respondent submitted an affidavit, as contemplated by the IPC’s Practice Direction #6 – Affidavit and Other Evidence, IPC (Sept. 2024).[5]
[31] Counsel for the Premier submitted that it was unreasonable to draw an adverse inference because no affidavit was submitted by the Premier. He submitted that the Premier was under no obligation to submit an affidavit.
[32] There is no basis for the submission that an adverse inference was drawn because no affidavit was submitted by the Premier affirming that he did not make government calls on his personal cellphone. The Premier was not required to submit an affidavit, but he clearly knew the case to meet. The fact that a party adduces evidence from which the judge is invited to draw an inference does not shift the burden of proof to the opposing party: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, at pp. 329-330. The opposing party has a choice. It may choose to adduce its own evidence on the point, but it is not obliged to do so. It is for that party to assess its risk in deciding whether or not to adduce evidence. Once all the evidence is in, the trier of fact will weigh it and determine whether to draw the invited inference: Angel Acres, at para. 172.
[33] In the absence of any direct evidence one way or the other regarding the Premier’s use of his personal cellphone for departmental business, it was not unreasonable for the Adjudicator to draw an inference based on the facts available.
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