Court Refuses To Draw Adverse Inference For Father, Sister, And Brother-In-Law Of Plaintiff Not Testifying

In Koltai v. Wang, the Plaintiff was injured when he was violently rear ended in a motor vehicle accident, and consequently pursued an ICBC claim for multiple heads of damages, including pain and suffering, income loss, diminished earning capacity, out of pocket expenses (special damages), and the cost of future care. Liability was admitted by ICBC’S lawyer. The Plaintiff’s wife testified at trial about the effect that his injuries had taken on his life, however counsel for the Plaintiff did not elect to call the Plaintiff’s father, sister, or brother-in-law. ICBC’S lawyer argued that, as a result of this, an adverse inference should be drawn. The Court, however, rejected this line of argument, ruling that such individuals are not the type of witnesses contemplated in the adverse inference rule.


[229] I am not satisfied that the defendant’s assertion that the plaintiff’s father should have testified to the details of the date and time he loaned the back brace to his son is correct. Further, I am not satisfied that the plaintiff’s failure to adduce his father’s evidence concerning his observations of the plaintiff up to September 2014 is an issue that should give rise to an adverse inference. I do not consider the type of the evidence that the plaintiff’s father could have given was necessarily corroborative of a fact that the plaintiff was obliged to prove in this case; the point raised by the defendant was not essential to the plaintiff’s claim. The issue only arises in the context of cross examination because the defendant contends that the plaintiff has been untruthful concerning his ability to walk and do other things and that the plaintiff was obliged to prove that his father loaned him the back brace on October 1, 2014.


[230] Further, I am not satisfied that the plaintiff’s father was within the plaintiff’s exclusive control; the defendant could easily have subpoenaed the plaintiff’s father to testify on this point.


[231] In the context of these circumstances, I am not satisfied that it is appropriate to draw an adverse inference. Any inference would likely have been limited to the fact that the father’s evidence would not have helped the plaintiff’s case rather than an inference that the plaintiff was untruthful when he described the circumstances under which he received the brace.


[232] The defendant said that an adverse inference should also be drawn because the plaintiff failed to call his sister, brother-in-law and father to testify about his condition in October 2014. The plaintiff’s wife was able to testify at about his circumstances from the date of the accident forward and the plaintiff is not obliged to call every person who had knowledge of his pre-and post-accident circumstances. These witnesses are simply not the type of witness contemplated in the adverse inference rule.

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