



COURT OF APPEAL FOR ONTARIO

CITATION:
Parris v. Laidley, 2012
    ONCA 755

DATE: 20121107

DOCKET: C54791

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Sandra Parris

Plaintiff (Respondent)

and

Derrick Laidley,
Gerald
    Laidley
and Ing Insurance Canada

Defendants (Appellant)

Alan L. Rachlin, for the appellant Gerald Laidley

Ari Krajden and Kyle T.H. Smith, for the respondent ING
    Insurance Company

Heard and released orally: October 31, 2012

On appeal from the decision of Justice James M. Spence of
    the Superior Court of Justice, dated December 1, 2011.

ENDORSEMENT

[1]

The motions judge granted summary judgment on the issue of implied
    consent against the owner of a car involved in an accident when driven by his
    son. Essential to his conclusion that the defendant had not rebutted the
    presumption of consent was an adverse inference he drew against the defendant because
    he failed to make any real effort to make his son Derricks evidence available.

[2]

Drawing adverse inferences from failure to produce evidence is
    discretionary.  The inference should not be drawn unless it is warranted in all
    the circumstances. What is required is a case-specific inquiry into the
    circumstances including, but not only, whether there was a legitimate
    explanation for failing to call the witness, whether the witness was within the
    exclusive control of the party against whom the adverse inference is sought to
    be drawn, or equally available to both parties, and whether the witness has key
    evidence to provide or is the best person to provide the evidence in issue.

[3]

In this case, the motions judge failed to take into account all relevant
    evidence in determining that the conditions precedent to drawing the adverse
    inference had been met. In particular, he made no findings concerning the
    credibility of the defendants evidence that supported his position that his
    son had no consent, express or implied, to drive the automobile on the occasion
    in issue.    The evidence, if accepted, gave rise to a strong inference of lack
    of consent. It was an error to draw an adverse inference without assessing this
    evidence.

[4]

In the result, the appeal is allowed.  Paragraph 1 of the formal order
    is set aside and an order dismissing the summary judgment motion brought by ING
    is substituted for paragraph 1.

[5]

The appellant shall have his costs of the appeal that we fix in the
    amount of $6,500, inclusive of disbursements and all applicable taxes.

Janet
    Simmons J.A.

Robert P. Armstrong J.A.

David Watt J.A.


