Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 214
[815] I refer to the case of WCC Containers Sales Ltd. v. Haul-All Equipment Ltd. (2003), 238
F.T.R. 45 (F.C.), at para. 42, where Justice Kelen said:
…This evidence was not cross-examined or contradicted. The
Court will draw the natural inference that the respondent did not
cross-examine because it did not want the deponent to expand
upon, and buttress, facts unfavourable to the respondent regarding
the functionality of the sloped design. As per Pigeon J. in
Levesque et al. v. Comeau et al. (1970), 16 D.L.R. (3d) 425 at p.
432 (S.C.C.), an analogous case where a party did not call an
obviously relevant witness:
2010 FC 495 (CanLII)
“In my opinion, the rule to be applied in such
circumstances is that a Court must presume that such
evidence would adversely affect her case.”
[816] This issue was also discussed by the Federal Court of Appeal in Milliken & Company et al.
v. Interface Flooring Systems (Canada) Inc. (2000), 251 N.R. 358 (F.C.A.) where Justice Rothstein
said the following at paras. 11 to 13:
[11] …However, even if the presumption was applicable, the failure
to call Ms. Iles to testify as to the creation date indicates as the most
natural inference, that the appellants were afraid to call her and this
fear is some evidence that if she were called, she would have
exposed facts unfavourable to the appellants. In drawing an adverse
inference, the learned trial judge relied on the following passage
from Wigmore on Evidence [see footnote 8] which is relevant to the
issue.
“The failure to bring before the tribunal some
circumstance, document or witness, when either the
party himself or his opponent claims that the facts
would thereby be elucidated, serves to indicate, as the
most natural inference, that the party fears to do so,
and this fear is some evidence that the circumstances
or document or witness, if brought, would have
exposed facts unfavourable to the party. These