In civil litigation, courts will sometimes draw what’s called an “adverse inference.” It is an assumption that a party’s failure to call an important witness/expert means that the witness’s evidence would not have helped their case.
The recent New Brunswick Court of Appeal decision in Mattson v. TD General Insurance Company, is a strong example of how this principle may be applied, particularly in personal injury and insurance disputes. Timothy Collins of Correia & Collins represented the Plaintiff.
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The Facts
After a serious 2016 car accident, Ms. Mattson suffered multiple injuries, including a diagnosed brain injury (concussion). She received income replacement benefits under Section B of her TD Insurance policy for several years.
In 2021, TD terminated those benefits, claiming Ms. Mattson was no longer disabled and was “malingering.” The insurer relied on reports from its medical assessors, while Ms. Mattson’s treating neurologists consistently confirmed that her symptoms such as headaches, dizziness, and cognitive issues were real and accident-related.
When TD refused to reinstate her benefits, Ms. Mattson brought a Small Claims action. That court dismissed her case, reasoning that the claim couldn’t be resolved without hearing from “duelling experts” TD, despite saying its experts were essential, decided not to call them.
The Plaintiff appealed. The New Brunswick Court of Appeal reversed the lower court’s Decision.
The Law
In civil cases, a court may draw an adverse inference against a party who fails to call a key witness under their exclusive control and offers no reasonable explanation for that omission (Chabot v Chaube, 2014 BCSC 300). This inference should only arise where the missing witness’s evidence would likely have been stronger or more significant than other comparable evidence already presented (Levesque v Commeau, [1970] SCR 1010, 16 DLR (3d) 425).
The Decision
While the extensive scope of examination for discovery has mostly removed the reasoning for the inference, this recent decision reaffirmed that in cases where there is no discovery such as Small Claims or Rule 79 that “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.”
Conclusion
The Court of Appeal said the omission of one of the defendant’s experts was crucial. That when an insurer declares that an expert’s oral evidence is necessary, obtains time to present it, and then withdraws without explanation, the only reasonable conclusion is that the testimony would have undermined its position.
The Court of Appeal allowed Ms. Mattson’s appeal, set aside the lower court’s decision, and granted her the maximum allowable judgment of $20,000 for income replacement benefits, plus interest and costs.
Case: https://www.canlii.org/en/nb/nbca/doc/2025/2025nbca114/2025nbca114.html
Human rights and helping others has always been a passion of mine. In high school, I took human rights courses. At St. Thomas University, it was one of my undergraduate majors. Eventually, I channelled my passion into a career in law. Today, I value the significance my services have in making my clients’ lives easier. Helping them navigate the insurance and legal systems and guiding them during a challenging time is a priority and a privilege for me.