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Evidence - Adverse Inference/Presumption


Part 2

. Voltage Holdings, LLC v. Doe #1

In Voltage Holdings, LLC v. Doe #1 (Fed CA, 2023) the Federal Court of Appeal extensively considers the related evidentiary issues of 'burden of proof' (both shifting 'persuasive/legal' and 'evidential') and shifting 'adverse inference', here in a copyright infringement default context:
V. Burdens of proof and adverse inferences

[38] A defendant’s failure to file a defence means that no allegations of fact in a pleading are admitted (Rule 184(1); Tatuyou, LLC v. H2Ocean Inc., 2020 FC 865, 176 C.P.R. (4th) 1 at para. 9 [Tatuyou]; NuWave Industries Inc. v. Trennen Industries Ltd., 2020 FC 867, 177 C.P.R. (4th) 1 at para. 16 [NuWave]). Therefore, the appellant, as plaintiff before the Federal Court, bore the legal or persuasive burden of leading sufficient evidence to prove the necessary elements of its claim on a balance of probabilities (Tatuyou at paras. 9, 25; NuWave at para. 16).

[39] The legal burden of proof, sometimes called the “persuasive burden” (see R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3), never shifts, and the evidentiary building blocks by which it can be discharged may include affirmative evidence and adverse inferences. However it is discharged, the plaintiff in a civil case must prove its claims on a balance of probabilities with evidence that is “sufficiently clear, convincing and cogent” (Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720 at para. 36; Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138 at para. 40; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46).

[40] The need for predictability in trial processes demands that the burden of proof be allocated according to rules of law and not ad hoc decisions by the trier of fact (Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022) at 105). Thus, normally, no true “shifting” of any legal burden occurs in the course of an action. The plaintiff must lead evidence on the required elements of the case, and matters of affirmative defence must be proved by the defendant (J. Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed. (Toronto: LexisNexis, 2020) at 84). Which party bears the legal or persuasive burden of proof in relation to a fact or issue is governed by the substantive law, and the burden is always on the party asserting a proposition or fact that is not self-evident (WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420 at para. 30; Robins v. National Trust Co., 1927 CanLII 469 (UK JCPC), [1927] A.C. 515, [1927] 2 D.L.R. 97 (P.C.) at 100-101).

[41] The evidential burden, in contrast, refers to a party’s obligation to establish, through sufficient evidence, the existence or non-existence of a particular fact or issue so that a particular argument is live before the Court (R. v. Schwartz, 1988 CanLII 11 (SCC), [1988] 2 S.C.R. 443, 55 D.L.R. (4th) 1 at 466-467 [Schwartz]). Unlike the party with the legal burden, the party with an evidential burden is not strictly required to convince the trier of fact of anything, since an issue can be put into play without being proven (Schwartz at 467). Thus, the use of the term “tactical burden” to describe the evidential burden has been criticized as evidential burdens are imposed by law and are not matters of tactics (Lederman at 101, citing G. Williams, Textbook of Criminal Law, 2d ed. (London: Stevens & Sons, 1983); R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 11-12).

[42] While legally discrete, shifting evidentiary burdens and adverse inferences are closely related and frequently used interchangeably. The failure to respond with exculpatory evidence to evidence led by a plaintiff may have consequences for a defendant. As the Supreme Court noted, “[i]t is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant” (Snell at 329-330). In this sense, the term “tactical burden” is apt, as it reflects the dynamic of the trial process. As Sopinka on the Trial of an Action notes, “the use of the term ‘burden of proof’ is merely a compendious way of summarizing the consequences of calling no evidence to rebut the evidence which gives rise to the inference” (McEwan at 84-85).

[43] The consequences of calling no evidence to rebut inculpatory evidence in the context of online copyright infringement are a major issue on this appeal; a review of prior adaptations to the typical burden of proof in civil matters assists in identifying these consequences, if any.

(1) Cook v. Lewis, 1951 CanLII 26 (SCC), [1951] S.C.R. 830, [1952] 1 D.L.R. 1 [Cook]

[44] No judge or lawyer can forget Cook v. Lewis, the classic case we learned as students in the first-year of law school. There, a plaintiff had been shot during a hunting accident but was unable at trial to prove which of the two defendants was responsible.

[45] The Supreme Court held that, on proof that the plaintiff had been injured by one of the hunters, the onus shifted to each hunter to then establish that their conduct had not been negligent. Cartwright J., writing for the majority, determined that where a trier of fact could not ascertain which particular defendant had caused the plaintiff’s injury, because either defendant could equally have been the cause of the injury, both should be held liable (Cook at 842). Rand J., in a concurring set of reasons later endorsed by the Supreme Court in Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634, 129 D.L.R. (4th) 609 [Hollis], explained the policy rationale for such a reversal of the onus of proof: he reasoned that the defendants had, by their own conduct, “made more difficult if not impossible the means of proving” the plaintiff’s case, and had “in effect, destroyed the victim’s power of proof” (Cook at 832).

(2) National Trust Co. Ltd. v. Wong Aviation Ltd. et al., 1969 CanLII 11 (SCC), [1969] S.C.R. 481, 3 D.L.R. (3d) 55 [National Trust]

[46] The impact of evidentiary voids created by defendants is also observed in bailment cases. In National Trust, the Supreme Court adopted the following rationale for imposing a burden on the defendant bailee (at 489):
Lord Justice Atkin explains the grounds upon which the principle [governing the burden of proof in bailment cases] is founded, and I quote his language as follows: “The bailee knows all about it; he must explain. He and his servants are the persons in charge; the bailor has no opportunity of knowing what happened. These considerations, coupled with the duty to take care, result in the obligation on the bailee to show that that duty has been discharged.”
[47] The Supreme Court in National Trust stressed that this rule of evidence, which effectively requires a defendant or bailee to prove a negative (that they were not negligent in handling the bailor’s chattel), should only be invoked in circumstances where all considerations stipulated by Lord Atkin apply (National Trust at 489). Ritchie J. wrote that he “[did] not think it desirable, except in the clearest of cases, for a question of liability to be determined on the sole ground that the strict rules of evidence regarding the shifting of the onus of proof have not been complied with” (National Trust at 491). This led to the Supreme Court’s later observation in Snell that the legal burden may be reversed if the rationale for its original allocation—that the party asserting an issue is in the best position to prove it—is absent.

(3) Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289

[48] In Snell, Sopinka J. noted that the allocation of the burden of proof is a flexible concept. He confirmed that the Supreme Court “has not hesitated to alter the incidence of the ultimate burden of proof when the underlying rationale for its allocation is absent in a particular case”, referring to National Trust and Cook (Snell at 321). A defendant’s unique opportunity of knowledge with respect to the facts to be proved may open the door to an adverse inference being drawn, and “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary” (Snell at 328-329, 335-336).

[49] The Supreme Court then went on to distinguish the case before it from Cook, where the reversal of the burden of proof was justified as the defendants’ own tortious conduct had destroyed the plaintiff’s means of proof. In Cook, the Supreme Court held, the injury was not caused by “neutral conduct”; it was therefore “quite a different matter” to reverse the burden of proof where the injury may very well be due to factors “unconnected to the defendant and not the fault of anyone” (Snell at 327). The Supreme Court continued, noting that while it was not accurate to describe the burden as shifting to the defendant, the plaintiff may nevertheless adduce sufficient evidence to warrant an adverse inference against the defendant (Snell at 329-330):
Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden… In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted.
(4) Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., 1991 CanLII 27 (SCC), [1991] 3 S.C.R. 3 [Rainbow Caterers]

[50] In Rainbow Caterers, the Supreme Court reiterated that the legal burden is not immutable, citing National Trust and Snell. The Supreme Court framed the evidentiary procedure applicable to the matter on the basis of which party had advanced which issue (Rainbow Caterers at 15):
Once the loss occasioned by the transaction is established, the plaintiff has discharged the burden of proof with respect to damages. A defendant who alleges that a plaintiff would have entered into a transaction on different terms sets up a new issue. It is an issue that requires the court to speculate as to what would have happened in a hypothetical situation. It is an area in which it is usually impossible to adduce concrete evidence. In the absence of evidence to support a finding on this issue, should the plaintiff or defendant bear the risk of non-persuasion? Must the plaintiff negate all speculative hypotheses about his position if the defendant had not committed a tort or must the tortfeasor who sets up this hypothetical situation establish it?
[51] The Supreme Court found that it was for the defendant to make out its case on an issue set up by it, to temper the quantification of damages as proved by the plaintiff. It observed that “[v]alid policy reasons will be sufficient to reverse the ordinary incidence of proof”, and that the matter before it warranted such a reversal; the defendant had asked the court to arrive at a conclusion opposite that asserted by the plaintiff regarding what would have occurred in the hypothetical world, and therefore bore the burden of displacing the plaintiff’s assertion of the state of affairs as they had previously existed (Rainbow Caterers at 15-16).

(5) Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634, 129 D.L.R. (4th) 609

[52] In Hollis, the Supreme Court determined that a manufacturer of breast implants had a duty to warn physicians of risks associated with the implants.

[53] The appellant in Hollis struggled with an evidentiary hurdle similar to that facing the appellant in the present matter. While the appellant’s “power of proof” had not been destroyed as it had been in Cook, it nevertheless was “seriously undermined” by the manufacturer’s insistence that she prove a hypothetical series of events: that her physician would have relayed to her all warnings from the manufacturer, had he indeed received information from the manufacturer regarding the risks of ruptured implants (Hollis at 683).

[54] Although the physician’s conduct may have itself contributed to the breach of the appellant’s right to informed consent, the Supreme Court did not require the appellant to definitively eliminate every other possible cause of her injury before holding the manufacturer liable. The Supreme Court decided that it was not for the plaintiff, Ms. Hollis, to prove that her doctor would have passed on the warning to her; she was in a position of “informational inequality” with respect to this issue, and had clearly “played no part in creating the set of causal conditions leading to her injury” (Hollis at 683).

(6) Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352

[55] The Supreme Court in Benhaim dealt with a similar tension between the evidence required of a plaintiff on the one hand, and the limitations on the evidence made available by a defendant on the other. In Benhaim, the Supreme Court determined that, although a physician’s negligence had undermined the plaintiff’s ability to prove causation in a medical liability case, the trial judge was not obligated to draw an adverse inference against the defendant (Benhaim at paras. 41-42). In cases where the plaintiff’s quest for evidence is frustrated by the defendant’s negligence, “an adverse inference of causation may discharge the plaintiff’s burden of proving causation”, but “[t]hose circumstance do not trigger such an inference” (Benhaim at para. 42, emphasis in original). The Supreme Court highlighted the permissive language that figures in case law describing trial judges’ exercise of their discretion to draw adverse inferences (Benhaim at paras. 43, 52).

[56] The Supreme Court concluded that uncertainty or speculation about a defendant’s evidence is insufficient to warrant the drawing of an adverse inference (Benhaim at para. 44). Instead, decisions to draw an adverse inference must be based on “an evaluation of all of the evidence”, including the weaknesses in the plaintiff’s own evidence (Benhaim at para. 44). To approach the decision in any other way, where an adverse inference is triggered only by a scarcity of evidence, would have “the same effect as impermissibly reversing the burden of proof” (Benhaim at paras. 44, 68). The Supreme Court found that such an approach, in the context of the medical liability case before it, “risks turning defendant professionals into insurers” (Benhaim at para. 68).

[57] A review of burdens of proof and adverse inferences arguably pulls in favour of the appellant’s position. Taken together, Cook, National Trust, Snell, Rainbow Caterers, Hollis, and Benhaim show that the allocation of the burden of proof must be responsive to the parties, their respective abilities to procure or access critical evidence, and the issues raised in the matter. They also show that inferences may be drawn where a plaintiff cannot reasonably be expected to prove every aspect of their injury.

[58] These overarching themes collide, however, with the reality that copyright law is statutory, and that both “infringement” and “authorization” are statutory terms whose scope and content has been judicially defined (CCH at paras. 9 and 38; SOCAN at para. 82; ESA at paras. 71, 104-107; Compo Co. Ltd. v. Blue Crest Music et al., 1979 CanLII 6 (SCC), [1980] 1 S.C.R. 357, 105 D.L.R. (3d) 249 at 372-273). In this way, CCH, SOCAN, Rogers and ESA establish minimum evidentiary requirements of a successful claim of infringement. More specifically, this jurisprudence does two things: it prescribes certain facts that must be established to prove infringement, and it allows for the drawing of adverse inferences of infringement based on the overall state of the evidence.
The court continues at paras 59-85 to usefully apply these principles to this evidentiarily plaintiff-difficult case.

. R. v. Millard

In R. v. Millard (Ont CA, 2023) the Court of Appeal considered two murder appeals, heard together. In these quotes the court considers adverse evidentiary inferences that can be drawn from the failure to call certain witnesses:
[78] It is settled law that it is only in very limited circumstances, and with the greatest of caution, that a trier of fact can draw an “adverse” inference from the failure by a party to call a particular witness: R. v. Zehr (1980), 1980 CanLII 2964 (ON CA), 54 C.C.C. (2d) 65 (Ont. C.A.), at pp. 68-69; R. v. Lo, 2020 ONCA 622, 152 O.R. 709 (C.A.), at para. 156. As the trial judge explained to the jury, this is because there may be good and valid but unknown reasons why a party has not done so. Mr. Smich effectively concedes that there was no basis in this case for an adverse inference relating to the failure by the Crown to call Mr. Lewis, but he argues that the trial judge was mistaken in concluding that he was seeking an adverse inference. He contends that to be an invitation to draw an adverse inference within the meaning of the authority, a party must invite the trier of fact to infer that the opposing party did not call the evidence because it would have been contrary to that party’s case. He submits that he asked the jury only to infer that the Crown “didn’t call Lewis because it wouldn’t help their case”, which he claims not to be an adverse inference.

[79] In my view, Mr. Smich takes an unduly narrow view of what constitutes an adverse inference. In R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 28, Binnie J., in explaining the “exact nature” of an adverse inference, described both an inference that the evidence would be contrary, and an inference that the evidence would not be helpful. Specifically, he said, “the failure to call evidence may … amount ‘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’”: citing Murray v. Saskatoon, 1951 CanLII 202 (SK CA), [1952] 2 D.L.R. 499 (Sask. C.A.) (emphasis in original). In R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161 (C.A.), at para. 81, leave to appeal refused, [2012] S.C.C.A. No. 34658, Epstein J.A. also said that both of these inferences are “adverse inferences”. I agree.
. Trillium Power Wind Corporation v. Ontario

In Trillium Power Wind Corporation v. Ontario (Ont CA, 2023) the Court of Appeal considers, and applies, the evidentiary doctrine of 'spoliation':
(a) Governing principles

[20] Spoliation arises out of the destruction of potentially relevant evidence. It "occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation”: McDougall v. Black & Decker Canada Inc., 2008 ABCA 353, 440 A.R. 253, at para. 18.

[21] The motion judge correctly stated that “while spoliation as a self-standing cause of action is still open to question, Ontario courts have recognized spoliation as an evidentiary rule where there has been destruction of evidence by a party who reasonably anticipated litigation in which that evidence would play a part” and that this rule of evidence gives rise to a rebuttable presumption that the evidence destroyed would have been unfavourable to the party who destroyed it. He also rightly determined that he would not dismiss the spoliation claim at that stage on the basis that the cause of action is somewhat novel. While this court has not yet definitively resolved whether spoliation is a cause of action, it has permitted it to proceed to trial as a novel cause of action: Spasic Estate v. Imperial Tobacco Ltd. (2000), 2000 CanLII 17170 (ON CA), 49 O.R. (3d) 699 (C.A.), at paras. 12 and 22, leave to appeal refused, [2000] S.C.C.A. No. 547. It is unnecessary for the purposes of this appeal to resolve the issue.

[22] While a novel standalone cause of action, spoliation is not a novel issue. It arises out of a party’s breach of the well-established obligation to preserve and produce relevant documents in civil proceedings. The court’s intervention is required because spoliation undermines a fair trial process and interferes with the quest for the truth in judicial proceedings: Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21, at para. 36. As such, it amounts to an abuse of process.

[23] In St. Louis v. Canada (1896), 1896 CanLII 65 (SCC), 25 S.C.R. 649, at pp. 652-653, the Supreme Court established that the destruction of evidence carries a rebuttable presumption that “the evidence destroyed would have been unfavourable to the party who destroyed it”. The Court of Appeal of Alberta described the Supreme Court’s conclusion from St. Louis as follows, in McDougall, at para. 19:
Spoliation in law does not occur merely because evidence has been destroyed. Rather, it occurs where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. Once this is demonstrated, a presumption arises that the evidence would have been unfavourable to the party destroying it. This presumption is rebuttable by other evidence through which the alleged spoliator proves that his actions, although intentional, were not aimed at affecting the litigation, or through which the party either proves his case or repels the case against him.
[24] The court’s jurisdiction to grant remedies in response to spoliation springs from rules of civil procedure, its inherent power to control an abuse of its process, and its inherent discretion with respect to costs: McDougall, at para. 22. Remedies granted have mostly included but are not limited to the application of the adverse presumption referenced above in St. Louis, and costs: McDougall, at para. 29. Whether damages, including punitive damages, may be awarded if spoliation is treated as a standalone cause of action is an issue for another day and need not be resolved in this appeal: Armstrong v. Moore, 2020 ONCA 49, 15 R.P.R. (6th) 200, at para. 37.

(b) Principles applied

[25] Respectfully, the motion judge erred in dismissing the claim by holding that the evidentiary basis for the appellant’s claim was absent and by concluding that the unfavourable presumption against Ontario because of its destruction of documents was rebutted by the implementation of a government policy that the motion judge acknowledged was improper.

[26] First, there was an ample evidentiary basis to support spoliation by Ontario.

[27] Based on the motion judge’s own findings, there can be no question that the destruction in issue was deliberate and in accordance with an improper government policy. The motion judge found, based on an investigative report by the Information and Privacy Commission of Ontario, that the improper destruction of hand-held devices, emails and documents by the Premier’s Office under former Premier Dalton McGuinty was a notorious violation of record-keeping obligations and raised serious issues of political accountability.

[28] Moreover, there is no dispute that the impugned destruction occurred subsequent to the commencement of the appellant’s claim and concerned likely relevant documents in the possession of individuals who, as the motion judge found, were intimately involved in the relevant events and who were aware of the appellant’s claim. These individuals included Messrs. Mullin, Chris Morley, former Chief of Staff, and Jamison Steeve, among others, who were so engaged in the events giving rise to the wind farm moratorium and the appellant’s claim that they provided affidavits in support of Ontario’s summary judgment motion.

[29] The motion judge also discussed how the destruction of this evidence may have affected the litigation of this case, at para. 21:
The parties have engaged in documentary exchange, examinations for discovery, etc. During this time, it has become apparent that, among other things, the Ontario government is unable to locate and produce any emails from the email servers of any former [Office of the Premier] personnel. This lack of documentation is significant as [Office of the Premier] personnel were centrally involved in considering the offshore wind decisions in issue here, including both the decision to put a stop to offshore projects and the decision to announce that policy change on February 11, 2011.
[30] It is no answer to the appellant’s allegation of spoliation that Ontario’s right hand did not know what the left hand was doing. Ontario is a party to these proceedings and knew about the appellant’s claim prior to its destruction of documents, emails and devices. As a party to these proceedings, Ontario was required to preserve any potentially relevant documents in order to fulfill its disclosure obligations. Such documents included any potentially relevant emails, including those in the possession of departing employees who Ontario knew had relevant evidence – so relevant that Ontario put them forward as its own affiants in support of its motion for summary judgment. That these documents were potentially relevant to the issues in these proceedings is obvious from the gaps in the email exchanges that have been produced. Ontario’s deliberate destruction of evidence is clear.

[31] Importantly, whether Ontario’s intention was to destroy relevant evidence for use in simply this litigation or in all litigation is a distinction without a difference. As the motion judge referenced, it is a matter of public record that the subsequent inquiry into Ontario’s destruction policy in 2013 and related criminal proceedings against Mr. Morley’s successor as Chief of Staff demonstrated that the intention of the spoliators was to destroy any incriminating documents, at paras. 23-25:
It is a matter of public record that during the McGuinty period the practice within the [Office of the Premier] was for the email accounts of departed personnel to be “decommissioned” – i.e. deleted in their entirety. Furthermore, there is evidence that the handheld devices used by the [Office of the Premier] personnel at the time were, after their departures from the [Office of the Premier], either reset or, in the case of former Chief of Staff Morley, physically destroyed.

Evidence of this practice was canvassed before the Legislative Committee investigating the deletion of documents in the context of the McGuinty government’s gas plant cancellation: Standing Committee on Justice Policy, Legislative Assembly of Ontario, 2nd Sess., 40th Parl., June 18, 2013. It was likewise the subject of an investigative report by the Information and Privacy Commission of Ontario, which concluded that the email destruction practice was a violation of the Archives and Recordkeeping Act, 2006, SO 2006, c. 34 and raised serious issues of political accountability: IPC, Deleting Accountability: Records Management Practices of Political Staff, June 5, 2013, at 32.Most notably, the device destruction and email deletion policy was also thoroughly canvassed during the course of the criminal trial of Chris Morley’s successor as chief of staff, David Livingston. It was there described by the court in rather scathing terms as a “plan to eliminate sensitive and confidential work-related data…[which] amounted to a ‘scorched earth’ strategy, where information that could be potentially useful to adversaries, both within and outside of the Liberal Party, would be destroyed”: R. v. Livingston, 2018 ONCJ 25, at para 176. [Emphasis added.]
[32] The motion judge failed to look at the question of spoliation in the broader context of Ontario’s obligations to preserve and produce relevant documents. He therefore applied a very narrow construction to the meaning and effect of Ontario’s intentional destruction of evidence that Ontario knew it had to preserve and produce. Allowing Ontario to by-pass its clear documentary obligations in this way would amount to an abuse of process. Applying the correct analytical lens leads to the conclusion that spoliation occurred: there was a deliberate destruction of potentially relevant evidence from which the reasonable inference can be drawn that the destruction was done to affect litigation, including the present litigation.

[33] As a result, the motion judge’s dismissal of the spoliation claim must be set aside.

[34] The appellant submits that in the event that the motion judge’s dismissal of its spoliation claim is set aside, this court should remit the case to trial for a determination of the appropriate quantum of damages arising from the spoliation.

[35] I would not do so. The appellant’s spoliation claim is inextricably tied up with its misfeasance claim. The setting aside of the motion judge’s dismissal of the spoliation claim does not affect the dismissal of its claim for misfeasance in public office, including any claim for damages. Even if an adverse inference were drawn against Ontario that the destroyed evidence would have been unhelpful to its position in this litigation, the appellant could not have compelled Ontario to reverse its moratorium or fund its wind farm project and therefore suffered no damages, even if Ontario’s timing of the announcement of its moratorium had targeted the timing of the appellant’s financing. Moreover, the timing of the announcement even proved beneficial in that the appellant did not incur the cost of funding the cancelled project. As the appellant would not be able to demonstrate that it suffered any damages as a result of Ontario’s spoliation, there is no purpose in remitting it to the Superior Court for a trial on damages.

[36] This does not mean, however, that the appellant is left without any remedy flowing from Ontario’s deliberate spoliation. In my opinion, the circumstances of Ontario’s spoliation amount to an abuse of process: McDougall, at paras. 22, 29. As such, the appropriate remedy is to deprive Ontario of its costs below and grant the appellant its costs of the appeal.
. 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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Last modified: 19-03-24
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