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Adverse Inference:
Negative Presumptions for Failing to Present Evidence
Last Updated: July 02 2026
Question: What happens in Ontario if a party in a civil case fails to call a witness or produce evidence they controlled, and can the judge draw an adverse inference?
Answer: Adverse inference is an evidentiary rule in Ontario civil cases where, if a party does not testify, does not call a material witness, or does not produce relevant documents that were within their control (or should have been produced), the judge may presume the missing evidence or testimony would have hurt that party’s position, unless there is a legitimate, case-specific explanation and the witness was not exclusively within that party’s control or was equally available to both sides; the court’s decision to draw the inference is discretionary and depends on the circumstances. Courts have described this in decisions such as Tiwari v Chevalier, 2022 ONSC 3071 and Lane v Kock, 2015 ONSC 1972, and noted the approach as summarized in Parris v Laidley, 2012 ONCA 755. If you are dealing with a missing witness or missing documents issue in Ontario, a paralegal at Freed Legal Services can help you understand how adverse inferences might be argued and how to respond based on the facts of your case. Call (800) 716-1897 for a free consultation to discuss your next steps.
Understanding the Principle of Adverse Inference as an Evidentiary Rule Arising from Failure to Produce Evidence
An adverse inference may arise where a party fails to testify, or where a party fails to lead evidence that is in control of the evidence, and from such a failure the court may thereby presume that the reason for the absence of the evidence or the absence of testimony is that such would negatively affect the party who fails to provide the testimony or the evidence.
The Law
An adverse inference presumption arises from the expectation that where a litigant is in possession of evidence or control of a witness, the litigant would provide the evidence or present the witness unless the evidence or witness is harmful to the case of the litigant. The legal doctrine was provided within the cases of, among others, Tiwari v. Chevalier, 2022 ONSC 3071, and Lane v. Kock, 2015 ONSC 1972, which respectively stated:
[28] Adverse inferences may be drawn from a party’s failure to produce relevant documents they were required to produce or should have produced. (Sarzynick v. Skwarchuk, 2021 BCSC 443, at para. 190.)
[3] The effect of the failure of a party to testify or to call a material witness or other evidence, is summarized as follows in Sydney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014) at p. 386:
In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts 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.
The choice to apply an adverse inference is discretion as was explained within the Court of Appeal case of Parris v. Laidley, 2012 ONCA 755, wherein it was said:
[2] 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.
Summary Comment
The principle of adverse inference is the legal version of saying, if you got it, then flaunt it; and, if a party fails to do so, the court may presume that a party who fails to use evidence does so because the evidence would be unfavourable.
NOTE: A considerable quantity of online searches featuring “lawyers near me” or “best lawyer in” typically signifies a demand for prompt and competent legal assistance, rather than a specific job title. In Ontario, “licensed paralegals” are governed by the same Law Society that supervises lawyers and have the authority to represent clients in specific litigation cases. Key elements of this role include advocacy, legal analysis, and procedural expertise. Freed Legal Services provides legal representation within its licensed framework, focusing on strategic positioning, evidentiary preparation, and persuasive advocacy aimed at securing effective and positive outcomes for clients.
