Lane v. Kock, 2015 ONSC 1972

COURT FILE NO. 116/08

DATE: 20150123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zachariah Lane and Alexis Koch, plaintiffs

- and -

Luke Kock and Mary-Ellen Frances Kock, defendants

BEFORE: Bale J.

COUNSEL: Robert Sugar and Russell Tilden, for the plaintiffs

Martin Forget and Tushar Tangri, for the defendants

HEARD: January 20, 2015

ENDORSEMENT

[1] The defendants closed their case without calling the defendant Luke Kock as a witness. The primary reason why Mr. Kock was not called is that he is in pre-trial custody in Alberta.

[2] In these circumstances, counsel for the plaintiffs asks that he be allowed to argue that the jury may draw an adverse inference from Mr. Kock’s failure to give evidence, and that a direction to that effect be included in the charge to the jury. For the following reasons, I have decided that the issue of adverse inference will not be put to the jury.

[3] The effect of the failure of a party to testify, or to call a material witness or other evidence, is summarized as follows in Sydney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014) at p. 386:

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. Such failure 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.

[4] On his examination for discovery, Mr. Koch made a number of admissions against interest, some of which were read to the jury as part of the plaintiffs’ case. He also gave evidence on discovery that if given at trial, would have supported his defence and that of the co-defendant, his mother. There is no reason to believe that he would not have given the same evidence, at least in chief, had he been called as a witness at trial.

[5] I accept the statement made by defendants’ counsel to the effect that he had intended to call Mr. Kock and would have called him, had he not been incarcerated. Accordingly, since the failure of Mr. Kock to testify has been explained, it would be misleading to suggest to the jury that the reason for his failure to testify was that his evidence would be detrimental to his case.

[6] Counsel for the plaintiffs argues that Mr. Kock’s evidence on discovery was not truthful, and complains that as a result of the decision not to call Mr. Kock, he was deprived of the opportunity to cross-examine him. While that may be, it does not change the fact that it would be misleading to suggest to the jury that his non-attendance was not adequately explained.

[7] In his opening address to the jury, counsel for the defendants made a number of representations with respect to the evidence that Mr. Kock would give at trial. In the present circumstances, he acknowledges that counsel for the plaintiffs is entitled to comment on the failure of that evidence to materialize, and to point out to the jury in relation to any given issue of fact, that there is no evidence from Mr. Kock to support the defendants’ position. Objection is taken only to any suggestion that the jury should infer from his absence that Mr. Kock’s evidence would have been detrimental to, or not support, the defendants’ case.

[8] Just as it would be unfair to the defendants for the jury to be asked to assume that Mr. Koch’s failure to testify was that his evidence would be detrimental to his defence, it would be unfair to the plaintiffs for any explanation other than his incarceration to be put to the jury. As that explanation would be unduly prejudicial to the defendants, no explanation for Mr. Koch’s failure to testify will be given to the jury, other than the one that they have already been given, viz, that a party to a civil action is not obliged to testify, and that the decision whether to testify or not is a decision properly made by counsel in consultation with his client.

“Bale J.”

Date: January 25, 2015