Federal Court - Christian Aboriginal Infrastructure Developments ...

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[810] This is an extraordinary email and very damaging to the Defendant. It is worth noting that
this email was not produced voluntarily by the Defendant but was obtained by the Plaintiffs
pursuant to an Access to Information Request. It is noteworthy, as well, that the email is a “forward”
and the original message has not been provided.
[811] Surprisingly, Ms. Guscott in spite of her desire to have the “truthfull (sic) story told” and her
2010 FC 495 (CanLII)
admission to at least partial responsibility, was not called to testify and explain.
[812] The failure of the Defendant to call Ms. Guscott is put in starker relief when considered in
light of the evidence of Mr. Sewell that Ms. Guscott was present for at least part of the discovery
examination of Mr. Alan Kerr; see transcript pages 4210-4211. Further, Ms. Guscott was the only
person who was continuously employed in the DIAND Regional Office from 1996-2000; see the
evidence of Mr. Madill at page 4028 of the transcript.
[813] I draw the reasonable inference that if she had been called, her evidence would have been
harmful to the Defendant’s case. No satisfactory explanation was offered or provided concerning
her absence.
[814] The law is well-settled that the failure of a party to call a witness with personal knowledge
of facts that she alleges, will give rise to a negative inference on the part of the trier of fact, that the
“absent evidence” would be harmful to the party that failed to call the witness, in this case the
Defendant.