The Defendant lawyers contracted with the Plaintiff general contractor to construct a new office building. The Plaintiff claimed for outstanding amounts under the construction contract and subsequent construction change order. The Defendants denied any remaining amounts and counterclaimed for damages arising from the failure to complete the project on time and for deficiencies in the work performed. Each side argued that the other acted in bad faith in fulfilling their obligations under the contract.

The Plaintiff asked the Court to draw an adverse inference against the Defendant for their failure to call witnesses who were named on a Form 37. Macklin J. held that it was not necessary for the Defendants to serve a notice of their intention not to call those witnesses under Rule 8.15. Trial strategy evolves and changes over time, and it was open for the Plaintiff to call those witnesses if it desired so no adverse inference should be drawn. Justice Macklin allowed the Plaintiff’s Claim, and dismissed the Counterclaim and the mutual allegations of bad faith.