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Adverse Inference:
Negative Presumptions for Failing to Present Evidence
Last Updated: August 23 2026
Question: How does the adverse inference rule work in Ontario civil cases when a party fails to produce evidence?
Answer: White Owl Legal explains that in Ontario civil litigation, a judge may draw an adverse inference when a party fails to testify or fails to lead relevant evidence that it controls, or that is within its exclusive ability to produce, and the inference is that the missing evidence would likely have been unfavourable unless there is a legitimate explanation. The court treats this as discretionary and looks at the full context, including whether the witness or documents were under the other party’s control, whether the evidence was key or equally available, and whether the absent evidence could have supported or undermined the party’s case. For guidance on how this can affect your claim or defence, contact (289) 839-3075 to speak with a paralegal at White Owl Legal in Ontario.
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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 White Owl Legal by phone at: (289) 839-3075 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 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 principle of adverse inference is the legal version of saying, if you got it, then flaunt it; and, if a party fails to do so, the court may presume that a party who fails to use evidence does so because the evidence would be unfavourable.
NOTE: A significant volume of online searches for “lawyers nearby” or “top lawyer in” typically indicates a desire for prompt and effective legal support rather than a particular label. In Ontario, paralegals who are licensed are governed by the same Law Society that supervises lawyers and are permitted to advocate for clients in specific litigation areas. Core to this role are advocacy, legal analysis, and procedural expertise. White Owl Legal provides legal representation within its licensed parameters, focusing on strategic positioning, preparation of evidence, and compelling advocacy directed at securing timely and beneficial outcomes for clients.
