Carfra Lawton LLP | Victoria BC
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No adverse inference if either side can call the witness

The BC Court of Appeal has affirmed that the decision whether to draw an adverse inference from the failure to call a witness is a discretionary one subject to deference on appeal, absent “palpable and overriding error.”

The plaintiff in Singh v. Reddy, 2019 BCCA 79, alleged that the defendant had intentionally pushed her to the floor at a dinner-dance organized by a cultural society of which both parties were well-known members. The defendant denied the allegations and argued the plaintiff had simply fallen accidentally. Because of these irreconcilable versions of events, the trial judge had to rely almost entirely on eyewitnesses whose testimony was split evenly in terms of support between the two “sides.”

At trial, the plaintiff had initially planned to call an eyewitness who had been in close proximity at the time of the incident, but ultimately did not end up calling her. The plaintiff explained that the witness “did not want to get involved” and had “backed out” after allegedly being pressured by the society not to testify. The trial judge accepted this explanation and ultimately found in the plaintiff’s favour. The defendant appealed the trial decision, arguing that an adverse inference should have been drawn against the plaintiff for failing to call a material witness or, in other words, the trial judge should have assumed that the witness would have given testimony adverse to the plaintiff, had she been called.

The Court of Appeal upheld the trial judgment, finding that the trial judge’s decision not to draw an adverse interest was “closely bound up with the fact-finding process” and should not be interfered with absent palpable and overriding error. Further, as long as the witness is available to be called by the other party, there can be no objection, in terms of trial fairness, to a court’s declining to draw such an inference.

On appeal the defendant had also sought an opportunity to introduce fresh evidence relating to the witness that had not been called by the plaintiff at trial. The Court of Appeal declined the defendant’s application, holding that the evidence was not “fresh” but was discoverable by reasonable diligence prior to trial; and equally important, it was not likely to have changed the result at trial.

Case summary by Annie Olson