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Adverse Inference:
Negative Presumptions for Failing to Present Evidence
Last Updated: July 01 2026
Question: When you fail to testify or do not produce evidence you control in an Ontario civil case, can a court draw an adverse inference against you and how does a Paralegal at Paladin LLP in Ontario help you respond?
Answer: In Ontario civil litigation, an adverse inference can be drawn when a party does not testify or does not produce relevant evidence they were required to produce or should have produced, where the missing evidence was within the party’s control and there is no legitimate explanation; the court decides whether the inference is warranted in the circumstances, including whether the evidence was exclusively controlled or equally available and whether the witness could provide key facts, with guidance reflected in cases like Parris v. Laidley, 2012 ONCA 755 and Tiwari v. Chevalier, 2022 ONSC 3071. Paladin LLP provides Paralegal services across Ontario, helping you assess what evidence or documents to disclose, how to explain a gap in testimony or production, and what steps to take to reduce the risk of an unfair negative inference; for help, call (289) 925-1572.
Understanding the Principle of Adverse Inference as an Evidentiary Rule Arising from Failure to Produce Evidence
An adverse inference, which may sometimes also be called a negative inference, may occur a litigant fails to provide evidence or fails to provide testimony that was reasonably expected to come from the litigant. Where the litigant fails to provide the expected evidence or the expected testimony, the court may presume that the litigant avoided the evidence or testimony because such was unfavourable.
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 amount of online searches that include “lawyers near me” or “best lawyer in” typically indicate a pressing requirement for competent legal assistance instead of a particular job title. In Ontario, licensed paralegals are governed by the same Law Society that regulates lawyers and have the authority to represent clients in specific litigation issues. Advocacy, legal evaluation, and procedural proficiency are fundamental aspects of this role. Paladin LLP provides legal representation within its sanctioned mandate/scope, focusing on strategic positioning, evidentiary preparation, and persuasive advocacy aimed at obtaining efficient and advantageous results for clients.
