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Evidence - Adverse Inferences (3). Ahmad v. Association of Professional Engineers of Ontario
In Ahmad v. Association of Professional Engineers of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court considered the discretionary nature of the principle of adverse inference upon failing to call available evidence:[28] Failure to adduce evidence that is available to a party may give rise to an inference that the evidence would have been unfavourable to the party: Ma v. Canada (Citizenship and Immigration), 2010 FC 509, 368 FTR 116, para. 1. Drawing - or declining to draw - an inference is a matter of discretion, to be exercised on proper principles: Association of Professional Engineers v. Rew, 2020 ONSC 6018, para. 92.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 (Parris v. Laidley, 2012 ONCA 755, para. 2.). . Total Meter Services Inc. v. GVM Integration
In Total Meter Services Inc. v. GVM Integration (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal in part, here from a finding "for breach of fiduciary duty and breach of confidence".
Here the court considered an 'adverse inference' issue where the defendant failed "to produce relevant documents during discovery":[7] In her assessment of the credibility of Mr. Roberge’s evidence, the trial judge drew an adverse inference against Mr. Roberge on the basis that he failed to comply with his obligation under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to produce relevant documents during discovery. ....
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[11] This evidence provided an ample basis for the trial judge to draw an adverse inference in assessing Mr. Roberge’s credibility for failing to produce the GVM source code in the Visual Basic programming language. As there was an evidentiary basis for the adverse inference (i.e., this is not a “no evidence” situation), the trial judge’s credibility assessment and her decision to draw an adverse inference as part of that assessment are entitled to deference: 1468025 Ontario Limited v. 998614 Ontario Inc., 2016 ONCA 504, at paras. 14-15. I see no palpable and overriding error in her decision to draw an adverse inference.
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[13] The appellants argue that if the respondent wanted to pursue the issue of the appellants’ failure to comply with discovery obligations under the Rules, it was required to bring a pre-trial motion seeking a remedy under rule 30.06, such as cross-examination on the appellants’ affidavit of documents, a further and better affidavit of documents, or inspection of documents. The appellants argue that, not having brought such a motion, the respondent was taken to have accepted counsel for the appellants’ representation that complete production of the GVM source code had been made.
[14] I disagree. Although a pre-trial motion under rule 30.06 was an option available to the respondent, its choice not to pursue such a motion did not preclude the respondent from seeking an adverse inference at trial. There was no procedural unfairness to the appellants from the respondent arguing at trial that an adverse inference should be drawn against the appellants on the basis of incomplete disclosure of the GMS source code and the fact that it was disclosed in a language other than Visual Basic.
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