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Adverse Inference:
Negative Presumptions for Failing to Present Evidence
Last Updated: August 22 2026
Question: In Ontario civil disputes, can a court draw an adverse inference when a party fails to produce key evidence or testify?
Answer: Yes. In Ontario civil cases, an adverse (negative) inference may be drawn when a party fails to produce relevant evidence or documents they were required to produce, or fails to testify or call a material witness they were reasonably expected to provide, unless there is a legitimate explanation or the evidence was equally available to both sides, or the witness was not within the party’s exclusive control; courts treat the inference as discretionary and look at the case-specific circumstances. In Tiwari v. Chevalier, 2022 ONSC 3071, and Lane v. Kock, 2015 ONSC 1972, the court describes how the failure to produce expected evidence can support an inference that the evidence would be unfavourable. If you are dealing with missing documents, a witness who was not called, or a lack of affidavit evidence in an Ontario matter, paralegal KLP Paralegal Services can help you assess whether to seek or respond to an adverse inference and how to frame the explanation; call (416) 570-6378 to discuss next steps.
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Understanding the Principle of Adverse Inference as an Evidentiary Rule Arising from Failure to Produce Evidence
An adverse inference may arise where a party fails to testify, or where a party fails to lead evidence that is in control of the evidence, and from such a failure the court may thereby presume that the reason for the absence of the evidence or the absence of testimony is that such would negatively affect the party who fails to provide the testimony or the evidence.
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 adverse inference principle is discretionary and a judge is without a requirement to apply the principle where circumstances warrant. The basis for discretionary application of the adverse inference principle was explained by the Court of Appeal in Parris v. Laidley, 2012 ONCA 755, whereas it was stated:
[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 considerable amount of online searches for “lawyers nearby” or “top lawyer in” typically signify an urgent requirement for effective legal assistance instead of a particular professional designation. In Ontario, “licensed paralegals” are governed by the same Law Society that regulates lawyers and are permitted to represent clients in specific litigation cases. Skills in advocacy, legal analysis, and procedural expertise form the core of that function. KLP Paralegal Services provides legal representation within its licensed framework, focusing on strategic positioning, preparation of evidence, and persuasive advocacy intended to secure swift and advantageous outcomes for clients.