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Adverse Inference:
Negative Presumptions for Failing to Present Evidence
Last Updated: August 22 2026
Question: In an Ontario civil case, when can the court draw an adverse inference from a party’s failure to call a witness or produce evidence?
Answer: In Ontario civil litigation, an adverse inference can be drawn when a party fails to testify, fails to call a material witness, or does not produce relevant documents that were required or should have been produced, especially where the missing evidence or witness was within that party’s control and there is no legitimate explanation for the absence. The inference is discretionary, so the judge considers the full context, including whether the witness was under the party’s exclusive control, whether the evidence was equally available to both sides, and whether the witness had key facts that would likely support or undermine the party’s case. For help reviewing how this evidentiary rule could affect your matter, including tenancy, property management, or related paralegal files, Mole Legal Services can guide you through next steps at (647) 709-5157.
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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.
Note: Please contact Mole Legal Services by phone at: (647) 709-5157 to discuss any specific questions that you may have.
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 adverse inference principle is akin to the common saying of, if you got it, then flaunt it; and is based on the expectation that if a litigant fails to flaunt evidence, the reason for failing to do so is, presumedly, because the evidence is unhelpful, and more likely harmful, to the case of the litigant.
NOTE: A significant quantity of online searches for “lawyers near me” or “best lawyer in” typically indicates a pressing requirement for effective and competent legal assistance, rather than a particular job title. In Ontario, certified paralegals operate under the same Law Society that supervises lawyers and are permitted to represent clients in specific litigation scenarios. Essential elements of this role include advocacy, legal assessment, and procedural expertise. Mole Legal Services provides legal representation within its licensed framework, focusing on strategic planning, evidence preparation, and compelling advocacy aimed at attaining efficient and favourable outcomes for clients.
