What happens if my spouse or boss refuses to give evidence at trial?

A common issue in personal injury claims that clients raise is how their close relatives or co-workers will be involved in their lawsuit. A close relative can sometimes bring a claim pursuant to the Family Law Act which has its own set of risks and rewards that should be discussed with a lawyer. This article is going to focus on those who do not bring a Family Law Act claim.

A close relative or co-worker usually will not be required to give evidence unless the matter proceeds all the way to trial. As part of preparation for trial both your lawyer and the opposing lawyer will begin to prepare summons to witnesses. These are legal documents that require a person having knowledge of matters at issue to attend and give evidence.

Many personal injury claims will relate to the ability of the injured person to work, do housework, and otherwise carry on life as it was before the accident. Close relatives and co-workers are the best to give evidence on these issues. Therefore both plaintiff and defence lawyers will want to summons these people.

If these persons do not testify, a request for an adverse inference can be made to the Court at trial. An adverse inference is a rule of evidence that allows the judge or jury to conclude that the evidence of the absent witness would be contrary to the party’s case or at least would not be supportive of the case.

There are 3 criteria that the Court will consider when an adverse inference is requested:

  1. The witness must have key evidence to provide
  2. There must be no adequate explanation for the failure of the party to call the witness (for example, if they have died)
  3. The witness must be within the exclusive control of the party against whom the adverse inference is sought to be drawn

The third part of the test can be somewhat confusing. An example of a witness under “exclusive control” is the employee of a company that is party to a lawsuit. A spouse or child is not under the “exclusive control” of the Plaintiff. The Defendant has equal right to summons a spouse or relative to testify.

In Miller v. Carley, (2009) 98 O.R. (3d) 432, the Ontario Superior Court of Justice noted at paragraph 204: “The consequence of a party failing to call a witness may be greater where the party has the burden of proof.” In a personal injury case the Plaintiff has the burden of proof.

Therefore, in most cases a close relative or co-worker will not be involved in your lawsuit on a day to day basis but they may become involved if the matter proceeds to trial. They will have the ‘best knowledge’ about your work and home life and they are powerful witnesses before a jury. If they do not testify, an adverse inference may be requested that could harm the case being put forward.

Written by

Brendan Sullivan was called to the bar in Ontario in 2016 and practices with Sullivan Injury Law, assisting clients with their serious legal problems in the areas of personal injury, civil litigation, and wills.

As a lawyer, Brendan spent the first five years of his career in Hamilton assisting with preparing and running personal injury jury trials. Eventually he ran one of the first Zoom personal injury trials in Ontario in May 2021. Brendan is a trial lawyer and a strong advocate for his clients.

Brendan is a member of the Ontario Trial Lawyers Association, the Hamilton Law Association and regularly appears before the Superior Court of Ontario.