When a party does not tender any expert evidence, or call a certain witness at trial, the opposing party will often argue that an adverse inference should be drawn, which means that they are asking the Court to presume that the witness in question was not called as a witness because that witness did not have anything to say that would help that party’s case. Sometimes, the Court will draw an adverse inference, and sometimes it will not.

 

WHEN a WITNESS you DO NOT CALL is CALLED by the OPPOSING PARTY

 

In Frech v. Langley et al, the Plaintiff was injured in two motor vehicle accidents, and brought an ICBC claim for soft tissue injuries. The Plaintiff had a medical report written, however elected not to use this report, or have the author of the report testify at trial. ICBC’S lawyer would actually call the expert in question to testify, but still argued that an adverse inference should be drawn against the Plaintiff for failing to call the expert. The Court rejected this argument, commenting that:

 

[242] This is a peculiar case in that an adverse inference is sought against the plaintiff for failing to file a report from Dr. Cox, although Dr. Cox did in fact give evidence at the trial at the instance of defence counsel.

 

[243] It is a strange circumstance that defence counsel asks for an adverse inference that Dr. Cox would have given unfavourable opinion evidence to the plaintiff at the same time she says she did not ask Dr. Cox that same question in the witness box because she wasn’t sure what his evidence would be.

 

[244] Plaintiff’s counsel says that Dr. Cox was not cooperative and was in fact antagonistic and he had Dr. Hershler’s opinion to rely upon.

 

[245] Dr. McGraw gave evidence and his prognosis for the plaintiff was for good recovery, meaning a return to her activities of daily life, although he was unable to predict that she would be pain-free. I accept this opinion.

 

[246] I cannot envisage Dr. Cox having given any different opinion if his opinion had been sought either by the plaintiff or by defence counsel in cross-examination.

 

[247] Therefore I decline to draw any adverse inference.

 

REFUSAL to DRAW ADVERSE INFERENCE WHEN PLAINTIFF DOES NOT TESTIFY

 

In O’Connell v. Yung, the Plaintiff had suffered a serious brain injury in a motor vehicle accident. The Plaintiff subsequently brought an ICBC claim for several heads of damages. Although the parties agree prior to trial on an amount for certain heads of damages, some remained, such as pain and suffering, the cost of future care, and an in-trust claim for the husband of the Plaintiff. At trial, the Plaintiff did not testify, as her counsel believed her to be an unreliable historian. The Plaintiff’s case consisted of medical evidence and witnesses. The Plaintiff was awarded a substantial amount of damages. ICBC’S lawyer appealed, arguing that the award was too high, and that the Court should have drawn an adverse inference from the Plaintiff not testifying. The British Court of Appeal reduced the amount of the award, but dismissed the adverse inference argument put forth by the lawyer for ICBC.

 

[16]         I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:

 

In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.

 

[17]         The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal.

 

[27]         There is no doubt that, in the absence of an explanation, it is permissible to infer that the reason a party does not testify is that their evidence would have harmed their case. The principle was forcefully stated in Lévesque v. Comeau, [1970] S.C.R. 1010 at 1012-13, 16 D.L.R. (3d) 425. That case involved a claim for damages for injuries sustained in a motor vehicle accident. The only issue was whether the accident caused the plaintiff to suffer a hearing impairment that did not manifest itself until two months after the accident. The plaintiff saw five different doctors in an effort to diagnose and treat her deafness. Only one of the doctors testified at trial. The trial judge found that the other doctors might have cast some light on the cause of her condition and drew an unfavourable inference. Pigeon J., for the majority, held that the plaintiff alone could bring before the Court the evidence and the facts necessary to establish causation and had failed to do so. He said, “[i]n my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case” (at 1012-13).

 

[30]         The circumstances in the instant case are distinguishable from Lévesque. The judge heard six days of evidence in the plaintiff’s case that described in great detail Ms. O’Connell’s abilities before and after the accident. She heard evidence from six expert medical witnesses and from Ms. O’Connell’s husband, son, and sister, all of whom testified to her cognitive deficits. The defendants did not object when plaintiff’s counsel advised that Ms. O’Connell would not be called to testify. The defendants did not ask to examine her as an adverse witness. The defendants did read in excerpts from Ms. O’Connell’s examination for discovery. Those excerpts, as the respondent argues on appeal, demonstrated Ms. O’Connell’s unreliability. For example, she was unable to recall her son’s birth date and misstated the number of years she had been employed prior to the accident. Even in submissions, the defendants made no reference to Ms. O’Connell not testifying.

 

[31]         In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.

 

[32]         The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.

 

[33]         In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.

 

REFUSAL to DRAW ADVERSE INFERENCE WHEN DEFENDANT DOES NOT TESTIFY

 

In Miles v. Kumar, the Plaintiff was injured as a cyclist when attempting to switch from the right lane to the left lane, in order to turn left at an intersection. The Plaintiff brought an ICBC claim for damages for pain and suffering, as well as various other forms of damages. The Court ruled that the Plaintiff was entirely responsible for the accident. At trial, the Defendant driver did not testify. The Plaintiff asked the Court to draw an adverse inference as a result of this, however the Court refused to do so.

 

[66]         The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar – “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.

[67]         The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.

[68]         In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged.

 

[69]         Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.

[70]          I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.

 

REFUSAL to DRAW ADVERSE INFERENCE WITH LATE PLAINTIFF TESTIMONY

 

In Ram v. Rai, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. A dispute arose between the parties as to the duration and severity of the symptoms of the Plaintiff. Despite a repair amount under $1000, the Court still ruled that the impact was not insignificant. The Plaintiff’s mother and sister testified before the Plaintiff. It is usually the case at trial that the Plaintiff testifies first, before anyone else. ICBC’S lawyer asked the Court to draw an adverse inference, given the Plaintiff’s late testimony. The Court refused to do so, but did provide some commentary with respect to the issue of the timing of a Plaintiff’s testimony.

 

[35]         The defendants submit in addition that the Court should draw an adverse inference from the fact that Ms. Ram testified as the third witness in the trial, and sat in the courtroom listening to the evidence of her mother and her sister, who testified first and second.  The defendants note that this sequence did not seem to be required for scheduling reasons, because the mother and the sister remained in or around the courtroom after having given their evidence.

 

[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence

 

[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 

 

[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.

 

[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.

 

REFUSAL to DRAW ADVERSE INFERENCE WHEN PRIVILEGE CLAIMED OVER EXPERT REPORTS

 

In Milburn v. Ernst, the Plaintiff was a motorcyclist injured when he was struck from behind. The Plaintiff commenced an ICBC claim for damages, alleging soft tissue injuries that were permanent in nature, while the lawyer for ICBC disputed this, claiming that the symptoms of the Plaintiff had resolved, and that minimal damages were appropriate. The Plaintiff obtained two expert reports, however chose to maintain privilege over them, and as such did not produce them for trial. ICBC’S lawyer argued that the Court should draw an adverse inference, however the Court refused to do so.

 

[85]         The major point in contention relates to Mr. Milburn’s evidence and contention at trial that he now has chronic or constant pain in his neck, lower back and thoracic spine which continues to plague him to this day and the further contention that this pain will likely continue into the future.

 

[86]         The defence says that Mr. Milburn’s evidence is contradictory, principally considering what he has reported to Drs. Behroozi, Badii and Kendall who all met with and examined Mr. Milburn around the same time in March 2010. Mr. Milburn told Dr. Behroozi that he had pain in his upper and lower back most of the time, with exacerbations intermittently. He told Dr. Badii that he had lower back pain that was no longer constant, pain in his buttocks that was intermittent, left upper back pain that was fairly constant and neck pain that was intermittent. Finally, he told Dr. Kendall that he had constant low grade pain in his upper back and mild to debilitating pain in his lower back. The defence says that there is no way to reconcile Mr. Milburn’s own evidence with these different reports over such a short time period, let alone reconcile it with his current evidence.

 

[87]         The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case.

 

[88]         In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn …… Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superiorin respect of the facts to be proved.

 

[89]         Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.

 

ADVERSE INFERENCE DRAWN WHEN MEDICAL REPORT NOT DISCLOSED

 

In Chekoy Sr. v. Hall, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for several heads of damages, including pain and suffering, income loss, diminished earning capacity, and the cost of future. An issue that arose was defence counsel’s refusal to produce a medical report from one of their own doctors that had examined the Plaintiff at at independent medical examination, despite the fact that defence counsel had previously agreed to produce it. Counsel for the Plaintiff asked the Court to a draw an adverse inference due to the failure of defence counsel to produce the report, which the Court did.

 

[85]         In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy.  As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff.  The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard.  The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory.  While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.

[86]         On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff‘s pre-existing degenerative disk disease, subsequent treatments, or other events.

 

REFUSAL to DRAW ADVERSE INFERENCE WHEN RELYING on CLINICAL RECORDS, but NOT CALLING DOCTOR as a WITNESS

 

In Azuma-Dao v. MKA Leasing Ltd., the Plaintiff was injured in a rear-end collision, and brought an ICBC claim for different heads of damages, such as pain and suffering, wage loss, diminished earning capacity, and cost of future care. Liability was admitted. The Plaintiff relied on clinical records of her family doctor, however elected not to call him at trial. ICBC’S lawyer argued that an adverse inference should be drawn, however the Court disagreed.

 

[45] I will mention the issue of adverse inference at this point.  Since all of Dr. Frank’s clinical notes were provided to the defence and Ms. Azuma-Dao admitted the relevant portions on cross-examination, I am not prepared to draw an adverse inference against the plaintiff for failing to call Dr. Frank, who was of course available to either side and was in fact on the defendants’ witness list.  However, since the defence gained what they required on cross-examination of the plaintiff, they cannot be faulted either for not calling Dr. Frank.

 

ADVERSE INFERENCE DRAWN BY COURT for NOT CALLING FAMILY DOCTOR as a WITNESS

 

In Westbroek v. Brizuela, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for damages for pain and suffering, income loss, diminished earning capacity, and future care costs. The Plaintiff would eventually be awarded a sizeable amount of over $600,000 for diminished earning capacity. The Plaintiff elected not to call his family doctor and an orthopaedic specialist at trial, causing ICBC’S lawyer to argue that the Court should draw an adverse inference. In the circumstances of this case, the Court refused to draw an adverse inference, holding that the evidence of the doctor and specialist in question would not have been superior to other experts called by the Plaintiff, nor that their evidence would been detrimental to the Plaintiff’s case.

 

[86]        The defendant also says there should be an adverse inference drawn for the failure to produce evidence from Dr. Lowe and Dr. Jackson. Dr. Lowe is a general practitioner at the walk-in clinic Mr. Westbroek attended from time to time after the motor vehicle collision. Dr. Jackson is the orthopaedic surgeon who did the operation to relocate the ulnar nerve. The clinical records of both of these physicians were available to both parties and neither of the doctors had terribly extensive dealings with the plaintiff. Dr. Lowe saw him, at least initially, as a walk-in patient and afterwards in prescribing different medications. Dr. Jackson’s treatment was limited to the unfortunately unsuccessful nerve relocation. In these circumstances, I do not find it reasonable to infer that their evidence would be superior to that given by the doctors called by the plaintiff, or that what they might have said would have been detrimental to the plaintiff’s case. Accordingly, I do not draw the negative inference suggested.

 

In Hodgins v. Street, the Plaintiff suffered a moderate traumatic brain injury in a motor vehicle accident as a passenger. She consequently brought an ICBC claim for damages for pain and suffering, as well as loss of income, diminished earning capacity, future care costs, and an in-trust claim. The lawyer for ICBC asked the Court to draw an adverse inference because the Plaintiff did not call her family doctor as a witness. In the circumstances of this case, the Court agreed.

 

[51]           The defendant argues that I should draw an adverse inference from the failure of the plaintiff to have Dr. Law, the plaintiff’s family doctor, provide a report or to call him as a witness

 

[52]           Dr. Law is the only physician (other than the chiropractor Dr. Kippel) who treated the plaintiff extensively before and after the accident.  A central issue in this case is the plaintiff’s pre-accident medical history and the extent to which the accident is the cause of the plaintiff’s difficulties today.

 

[53]           Dr. Law’s clinical records were produced.  But they are, by the terms of a document agreement between the parties, simply records kept in the ordinary course of business.  They do not contain any opinion. 

 

[55] Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describe the principle at para. 6.321:

 

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.

 

[emphasis added]

 

[56] There have been recent developments in the application of this principle in British Columbia.

 

[57]           In Barker v. McQuahe reflex, (1964), 49 W.W.R. 685 (B.C.C.A.), the Court of Appeal stated an adverse inference may be drawn if a litigant fails to call a witness who might be expected to give supporting evidence.  Mr. Justice Davey stated at 689 that a plaintiff seeking damages for personal injuries “… ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”.

 

[58]           That approach was modified in Buksh v. Miles2008 BCCA 318 (CanLII), 2008 BCCA 318, 83 B.C.L.R. (4th) 162, at para. 34:

 

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel.  Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, in a different context. 

 

[65]           In all the circumstances of this case, I infer that the plaintiff did not call Dr. Law because he would not have provided evidence helpful to the plaintiff’s position on these points:

1.         The plaintiff’s medical condition, both physical and psychological, at the time of the accident.

2.         The medical cause for the plaintiff’s fatigue before and after the accident.

3.         How the plaintiff progressed following the accident with the effects of the brain injury and the other soft tissue injuries.

 

REFUSAL to DRAW ADVERSE INFERENCE for NOT CALLING FAMILY DOCTOR as a WITNESS

 

In Burke v Artz and Rivard, the Plaintiff was injured in a car accident, and brought an ICBC claim for many heads of damages, including pain and suffering, loss of income, diminished earning capacity, and cost of future care. The Plaintiff elected not to call her family doctor at trial. The lawyer for ICBC asked the Court to draw an adverse inference because the Plaintiff did not call her family doctor as a witness. The Court disagreed, and did not draw any adverse inference.

 

[29]         The defendants argue that the court should draw an adverse inference from the plaintiff’s failure to adduce evidence from her family physician. They also argue that the plaintiff suffered from an active depression and was plagued by anxiety before the traffic accident. They say that they should not be required to fund treatment for those conditions after the accident, nor should they be required to compensate the plaintiff in damages for functional limitations caused by those psychological conditions. The defendants maintain that the plaintiff has now returned to work and is working at a capacity and income level commensurate with, if not better than, her situation before the accident. They say that no significant damages can therefore be awarded to the plaintiff for ongoing complaints. For non-pecuniary damages, the defendants say the plaintiff should receive $60,000.

[30]         As noted above, I accept the plaintiff’s testimony, and the testimony of her children, her friends and her co-worker. They all describe a person who is now forgetful, distracted, often fatigued, somewhat socially reclusive and unsure of herself. These were not typical characteristics of the plaintiff before the traffic accident. Before the accident, the plaintiff was socially engaged and energetic. She cooked and baked with enthusiasm.

 

[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

 

LAW of ADVERSE INFERENCE WITH RESPECT to a TRIAL JUDGE’S INSTRUCTIONS to a JURY

 

In Buksh v Miles and ICBC, the Plaintiffs were injured in a motor vehicle accident, and brought ICBC claims for their injuries. The claims of the Plaintiffs were dismissed at trial, with costs ordered against them. The Plaintiffs appealed, and the appeal was allowed, with a new trial being ordered. The British Columbia Court of Appeal discusses the law of adverse inference in relation to a trial judge’s instructions to a jury. In ordering a new trial, the Court commented:

 

[30]            The notion of adverse inference is related to the best evidence rule.  The observation in Wigmore’s Evidence in Trials at Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown & Company: 1979) vol. II, §287, at 202-3, offers valuable guidance:

 

Furthermore, it seems plain that possible witnesses whose testimony would be for any reason comparatively unimportant, or cumulative, or inferior to what is already utilized, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony.  In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non-production of witnesses whose testimony would be superior in respect to the fact to be proved.

[Emphasis in original.]

[31]            The general proposition long applied in British Columbia, stated by Mr. Justice Davey in Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), is that an inference adverse to a litigant may be drawn if, without sufficient explanation, that litigant fails to call a witness who might be expected to give supporting evidence.  Further, said Mr. Justice Davey at 689, a plaintiff seeking damages for personal injuries “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”. 

 

[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’s legal environment, and requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury.

 

[35]  … it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury: whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case. Where, as here, the trial started on the basis that all records should be before the jury, and ended with a request for an instruction on adverse inferences, and when both counsel have explained the failure to call the witness or witnesses by referring to their own assessment of the utility or need for the evidence, the answer to the threshold question I have stated is not self-evidently affirmative. In this case, in my view, the judge herself should have heard the explanations, considered the degree of disclosure of that witness’s files and the extent of contact between the party and the physician, received submissions and determined whether a reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact finding role. If not, the instruction had no place in her charge to the jury.