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Potential Adverse Inference for Failure to Call Particular Witnesses at Trial

Who should I pick to testify as witnesses at trial in my case against ICBC? Will the court draw a negative inference if I don’t call my closest friends and family as witnesses at trial (i.e. that it is because they wouldn’t describe me as suffering from the injuries I claim)?

The recent case of Jin v Spurrel, 2017 BCSC 1256, deals with ICBC defence counsel seeking to have the jury instructed by the Court with respect to drawing an adverse inference. The adverse inference in question is related to the Plaintiff’s failure to call particular individual as a witness. In this case, the witness who wasn’t called was Mrs. Zhang, the sister-in-law of the Plaintiff’s wife. The inference ICBC’s counsel sought was that Plaintiff counsel didn’t call her because she would not describe the Plaintiff as suffering from the mental injury he claimed.

The evidence before the court showed that Mrs. Zhang was very close to the Plaintiff’s wife. They saw each other very often before and after the accident. Consequentially, Mrs. Zhang also saw the Plaintiff fairly often during this time. Further, Plaintiff counsel called Mrs. Zhang’s husband as witness despite the fact he resides in China and he only saw the Plaintiff a total of three times since the accident. There was also a surveillance video before the court that suggested the Plaintiff, seemingly, did not suffer from a mental injury nor did he have any physical limitations.

The threshold for  the jury to be instructed on drawing an adverse inference is whether “a reasonable juror could draw the inference sought”: Buksh v Miles, 2008 BCCA 318 at paragraph 35. The Court of Appeal in Buksh stated:

[30]      The notion of adverse inference is related to the best evidence rule. The observation in Wigmore’s Evidence in Trials at Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown & Company: 1979) vol. II, s. 287, at 202-3, offers valuable guidance:

Furthermore, it seems plain that possible witnesses whose testimony would be for any reason comparatively unimportant, or cumulative, or inferior to what is already utilized, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony. In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non-production of witnesses whose testimony would be superior in respect to the fact to be proved.

In the context of the mental injury and the video surveillance, the court found that Mrs. Zhang’s evidence would have been “superior” to that of the Plaintiff or his wife who have a direct or indirect financial self interest in the outcome of the litigation. It would also be superior to that of Mrs. Zhang’s husband, who only saw the Plaintiff on three occasions. Ms. Zhang would have observed the Plaintiff on many occasions and may have been able to testify as to whether the behavior of the Plaintiff, as he was shown in the video surveillance, was exceptional, typical, or otherwise.

Therefore, in the present circumstances, the court was satisfied that a reasonable juror could draw the inference sought and instructed the jury with respect to the possibility of drawing an adverse inference.

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