Can a court draw an adverse inference against a party for not calling a particular witness?
British Columbia, Canada
The following excerpt is from Renaerts v. Renaerts, 2015 BCSC 1028 (CanLII):
The idea that the court ought to draw an adverse inference against a party for not calling a particular witness is connected to the “best evidence” rule, in the sense that an inference adverse to a party's case can be drawn fairly only where it can be shown that the witness whose testimony was not produced was superior to that which was presented to the court: Buksh v. Miles, 2008 BCCA 318, para. 30.
If a party provides sufficient reason as to why they did not call a witness, the court should not draw an adverse inference: McTavish v. MacGillivray, [1997] B.C.J. No. 1719 (S. C.), at para. 14.
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