Prima Facie

"In Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (LexisNexis Canada Inc., 2018) at §6.471 - §6.472, the situations in which an adverse inference can be drawn are set out:\n\n§6.471 In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it.\n\n§6.472 An adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden of proof.\n\nThe only objection set out in Mr. Deyab’s memorandum to the drawing of an adverse inference by the Tax Court Judge is the alleged failure of the Minister to first establish a prima facie case that Mr. Deyab had made a misrepresentation that was attributable to neglect or carelessness. In this case, substantial sums were transferred from M.D. Consulting to Mr. Deyab and his family which were not included in his income and were not reflected in the shareholders’ loan account. The Minister had, therefore, established a prima facie case that Mr. Deyab had made a misrepresentation in not including these amounts in his income for the years in question.\n\nAs a result, there is no basis to interfere with the drawing of an adverse inference against Mr. Deyab for failing to call his accountant or bookkeeper, or presenting a properly completed shareholders’ loan account reconciliation."