What is the test for drawing an adverse inference by reason of a party's failure to call a witness?
Ontario, Canada
The following excerpt is from Vhora v Vhora, 2016 ONSC 2951 (CanLII):
In Bishop-Gittens v. Lim, 2015 ONSC 3971 (CanLII), 75 C.P.C. (7th) 121, McKelvey J. reviewed the case law and set out the criteria necessary to draw an adverse inference by reason of a party’s failure to call a witness: (a) The witness must have key evidence to provide; (b) There must be no adequate explanation for the failure of the party to call the witness; and, (c) The witness must be within the exclusive control of the party against whom the adverse inference is sought to be drawn (para. 17).
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