Every litigator needs to be familiar with the rule in Browne and Dunn. In Goruk v. Greater Barrie Chamber of Commerce, 2021 ONSC 4046, the court went over the principles of this rule.
Overview of the Rule
The rule in Browne and Dunn requires a cross-examining lawyer to confront a witness with matters of substance on which the lawyer intends to call contradictory evidence.
The witness does not need to be confronted with inconsequential details. Moreover, the witness does not need to be confronted where the confrontation would be pointless (for instance, where the answers of the witness are a foregone conclusion).
The rule in Browne and Dunn is a rule of fairness. The main considerations are:
- Fairness to the witness whose credibility is attacked. The witness is alerted that the cross-examiner intends to impeach his or her evidence and is given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted.
- Fairness to the parties whose witness is impeached. The party calling the witness has notice of the precise aspects of the testimony of the witness that are being contested so that the party can decide whether or what confirmatory evidence to call.
- Fairness to the trier of fact. Without the rule, the trier of fact could be deprived of necessary evidence, thereby compromising the accuracy of the verdict.
Overall, the rule in Browne and Dunn addresses the proper functioning of the adversarial process.
Remedy for Violating the Rule
A trial judge has broad discretion to determine an appropriate remedy for a violation of the rule in Browne and Dunn. The rule should not be rigidly applied.
The most extreme remedy is for the court to draw an inference that the witness’ evidence on a point is true and to prohibit the opposing party from calling any contradictory evidence on the point.
However, Justice Boswell noted that this remedy is generally not favoured by appellate courts. Often, the appropriate remedy is to permit the witness to be recalled to attempt to explain the contradictory evidence.
Application to Case
The case in issue involved a wrongful dismissal action. The defendant alleged that it had just cause to terminate the plaintiff due to purported financial irregularities.
In the examination-in-chief of the defendant’s first witness, the plaintiff’s lawyer objected to the witness testifying on financial irregularities because almost none of the irregularities were put to the plaintiff in cross-examination.
Justice Boswell rejected the plaintiff’s request to prohibit the defendant from introducing evidence of the alleged financial irregularities. His Honour stated that this would defeat the fact-finding function of the trial process. His Honour noted that the aspiration of every trial is to arrive at the truth of a matter and, thereby, do justice between the parties.
Further, Justice Boswell indicated that the plaintiff had the benefit of the pleadings in which the defendant particularized its allegations against her. She also had the benefit of examinations for discovery during which her counsel was able to extensively question the defendant.
Justice Boswell stated that the plaintiff “did not step into the witness box unencumbered by an understanding of the defendant’s case against her”. The plaintiff and her counsel knew very well the live issues in the case and the defendant’s position on each of the issues.
Moreover, through the plaintiff’s examination-in-chief and cross-examination, the plaintiff had the opportunity to provide evidence on each of the pleaded allegations supporting the assertion of just cause.
Justice Boswell permitted the defendant to present its defence as it saw fit. This was subject to the possibility of the plaintiff being permitted to be recalled to give further evidence, following further argument on the issue.
If defence counsel intends to call contradictory evidence to impeach a witness, defence counsel should put that evidence to the witness in cross-examination. This is a matter of fairness. It gives the witness an opportunity to explain why the contradictory evidence should be rejected. It also permits plaintiff’s counsel to decide whether to call evidence confirming the evidence of the witness.
However, in civil actions, plaintiffs usually have detailed particulars of the defendant’s position through the pleadings and examinations for discovery. Therefore, plaintiffs are generally not taken by surprise. This militates against a finding of a breach of the rule in Browne and Dunn.
Should there be a breach of the rule in Browne and Dunn, the most common remedy is to permit the witness whose credibility is impeached to be recalled. It is very rare for the court to prohibit defence counsel from introducing the contradictory evidence as this would undermine the truth-seeking function of the trial.
As stated by Justice Boswell, “[w]hen only one side is effectively heard from, the usual checks and balances of the adversarial system break down. The prospect of the court getting it wrong and settling on a result that is neither just nor fair increases significantly”.