Tushar Tangri

During a civil jury trial, the plaintiffs sought leave to argue that the jury could draw an adverse inference from a defendant's failure to testify.

The court held that the defendant's non-attendance had been adequately explained by his incarceration in another province and that inviting such an inference would be misleading.

The plaintiffs were permitted to comment on the absence of supporting evidence from the defendant on specific factual issues, but not to suggest that his evidence would have been detrimental to the defence.

The adverse inference issue was not left with the jury.

On a trial motion, the defendants objected to evidence that one defendant apologized after an explosion causing burn injuries.

The court held that the Apology Act, 2009 did not apply retroactively to an apology allegedly made in 2006, before the statute came into force.

Applying the presumption against retroactive legislation, the court found the Act was directed to the making of apologies, not merely the future admissibility ruling at trial, and that retroactive application would alter the legal effect of a past event and potentially remove substantive insurance-related defences.

The apology evidence was therefore admissible.