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Adverse Inference:
Negative Presumptions for Failing to Present Evidence
Last Updated: August 26 2026
Question: In an Ontario civil case, when can a court draw an adverse inference because you failed to produce evidence?
Answer: In Ontario civil litigation, Wennekers.Legal™ can help explain how an adverse (negative) inference may be drawn when a party fails to produce relevant documents or testimony that was reasonably expected to be available, often because the other party argues the evidence was unfavourable; courts treat the inference as discretionary and require a case-specific look at whether there was a legitimate explanation, whether the missing evidence or witness was within the party’s control, and whether the witness had key or exclusive knowledge, including guidance reflected in Tiwari v. Chevalier, 2022 ONSC 3071 and Parris v. Laidley, 2012 ONCA 755; if you are facing a dispute over missing records or an uncalled witness, call (647) 701-1162 to discuss how professional legal services in Ontario can help you protect your position.
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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.
Note: Please contact Wennekers.Legal™ by phone at: (647) 701-1162 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 substantial amount of online searches for “lawyers near me” or “best lawyer in” typically indicate a demand for swift and effective legal assistance as opposed to a particular professional designation. In Ontario, the same Law Society that governs lawyers also regulates licensed paralegals, granting them the authority to represent clients in specific litigation cases. Central to this role are advocacy, legal analysis, and procedural expertise. Wennekers.Legal™ provides legal support within its licensed framework, focusing on strategic positioning, evidence preparation, and compelling advocacy aimed at securing efficient and advantageous outcomes for clients.
