Federal Court - Christian Aboriginal Infrastructure Developments ...
Federal Court - Christian Aboriginal Infrastructure Developments ... 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
Page: 215 inferences, to be sure, cannot fairly be made except upon certain conditions: and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the parties fear of exposure. But the propriety of such an inference in general is not doubted.” I think this is sufficient to displace any presumption. It was not necessary for the respondent to call evidence on the point. [12] In addition to the reasons of the trial judge for drawing an adverse inference, which I think are sufficient on their own, it is noteworthy that the appellants refused to disclose their witnesses in advance of trial. As the creation date of September 1988 was pleaded by the appellants, and the respondent in its statement of defence put the appellants to the strict proof thereof, it was reasonable for the respondent to expect that the appellants would lead evidence on the point. In these circumstances, it is no answer for the appellants to say that the witness was equally available to the respondent. Nor is it an adequate excuse that the witness was outside the jurisdiction. See Lévesque v. Comeau et al. [see footnote 9] 2010 FC 495 (CanLII) [13] I can find no fault in the approach and the finding of the learned trial judge. She was entitled to draw an adverse inference in these circumstances and to conclude that the Harmonie work was created prior to June 8, 1988. (Emphasis in original) [817] I also note that the Defendant’s witnesses Mr. Sewell and Mr. Ivanksi, and others, agreed that in all dealings they had with the Plaintiffs that the Plaintiffs’ representatives were honest and straightforward. Ms. Guscott, on the other hand, frequently maligned the representatives of the Plaintiffs, all without justification.
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Page: 215<br />
inferences, to be sure, cannot fairly be made except<br />
upon certain conditions: and they are also open<br />
always to explanation by circumstances which make<br />
some other hypothesis a more natural one than the<br />
parties fear of exposure. But the propriety of such an<br />
inference in general is not doubted.”<br />
I think this is sufficient to displace any presumption. It was not<br />
necessary for the respondent to call evidence on the point.<br />
[12] In addition to the reasons of the trial judge for drawing an<br />
adverse inference, which I think are sufficient on their own, it is<br />
noteworthy that the appellants refused to disclose their witnesses in<br />
advance of trial. As the creation date of September 1988 was pleaded<br />
by the appellants, and the respondent in its statement of defence put<br />
the appellants to the strict proof thereof, it was reasonable for the<br />
respondent to expect that the appellants would lead evidence on the<br />
point. In these circumstances, it is no answer for the appellants to say<br />
that the witness was equally available to the respondent. Nor is it an<br />
adequate excuse that the witness was outside the jurisdiction. See<br />
Lévesque v. Comeau et al. [see footnote 9]<br />
2010 FC 495 (CanLII)<br />
[13] I can find no fault in the approach and the finding of the learned<br />
trial judge. She was entitled to draw an adverse inference in these<br />
circumstances and to conclude that the Harmonie work was created<br />
prior to June 8, 1988.<br />
(Emphasis in original)<br />
[817] I also note that the Defendant’s witnesses Mr. Sewell and Mr. Ivanksi, and others, agreed<br />
that in all dealings they had with the Plaintiffs that the Plaintiffs’ representatives were honest and<br />
straightforward. Ms. Guscott, on the other hand, frequently maligned the representatives of the<br />
Plaintiffs, all without justification.