Overview
Since our days in law school, we’ve been reminded of the rule in Browne v. Dunn time and time again. We’ve heard about it from our professors, our colleagues and mentors, and sometimes from the bench itself - if you want to impeach another party’s witness, the impeaching material must be given to the witness during cross-examination in order to give them an opportunity to explain any contradictions.
The recent Court of Appeal decision of Taylor v. Zents, 2025 ONCA 662 reminds us of the importance of never forgetting this rule.
Mr. Taylor was seriously injured in a motor vehicle accident in 2015. As with most plaintiffs, his injuries developed over time, leading him to see multiple physicians. The Defendants’ theory hinged on Mr. Taylor inconsistently reporting his symptoms to different doctors, and these inconsistencies were used to support malingering. One particular inconsistent complaint was a report to an intake doctor of fluid leaking from his ear, as this was the only mention of this issue. The Defendants failed to question Mr. Taylor about his complaint of ear fluid, yet used it to undermine his credibility. Both the trial judge and the Court of Appeal held that this constitutes a breach of Browne v. Dunn, as Mr. Taylor was deprived of the opportunity to explain the inconsistent reporting.
Trial
At trial, Mr. Taylor was cross-examined on various injuries he reported, but not the leaking ear fluid.
Following his examination, Dr. Robinson, Dr. Staab, and Dr. Hamilton were each asked about Mr. Taylor’s reports of ear fluid and his inconsistencies in disclosing this symptom.
Neither Dr. Robinson nor Dr. Staab acceded to Zents’ suggestion that the inconsistencies were “marked discrepancies” which raise concerns about malingering. However, Dr. Hamilton admitted that the reports of ear fluid were “marked discrepancies”. The trial judge, Justice Casullo, raised the Browne v. Dunn issue: “You’re referencing the ear leakage problem; that was never put to Mr. Taylor.”
Justice Casullo granted Mr. Taylor’s motion to discharge the jury as the comments about ear leakage “irreparably tainted the jury”, and the evidence was hearsay. Mr. Taylor’s reports of ear fluid were to an intake doctor, who had not testified. In Her Honour’s judgement, she concluded Mr. Taylor suffered a traumatic brain injury and post-concussion syndrome. She found him to be a credible witness; his evidence disclosed no major inconsistencies, and any minor inconsistencies were understandable. He was awarded a combined total of over a million dollars in damages.
On Appeal
Zents’ counsel appealed on four grounds, one of which was Justice Casullo erred in finding a violation of the rule in Browne v. Dunn. The Court of Appeal dismissed all four grounds of appeal, upholding Justice Casullo’s findings.
Justice Wilson speaking on behalf of the Court, reminds us of the purpose and importance of Browne v. Dunn: “[t]he rule protects the witness whose credibility is attacked by alerting them that the other party intends to impeach their evidence…it protects the truth-seeking function of the trial by ensuring that the trier of fact has the benefit of any explanation the impeached witness can offer” (at paragraph 41).
Zents’ argument as to the trial judge’s err in finding a breach of Browne v. Dunn was three-fold:
(1) The ear fluid evidence impeached Dr. Hamilton’s opinion, not Mr. Taylor’s credibility
Justice Wilson found that impeaching Dr. Hamilton’s opinion would include an attack on Mr. Taylor’s credibility. Dr. Hamilton’s opinion was directly linked to Mr. Taylor’s credibility due to the subjective nature of the complaints. The purpose of Zents’ cross-examination was Dr. Hamilton could not rely on Mr. Taylor’s complaints due to inconsistencies in reporting other symptoms. The admission of a “marked discrepancy” was a hallmark that the evidence concerning his ear fluid impugned Mr. Taylor’s credibility. An explanation from Mr. Taylor as to why he failed to report this would have been relevant to an assessment of credibility. As such, failing to produce that explanation from Mr. Taylor was a breach of Browne v. Dunn.
(2) Mr. Taylor was previously cross-examined on general inconsistencies in symptom reporting
In addressing Zents’ second argument, there remains an obligation to put the evidence of the ear fluid to Mr. Taylor in addition to questioning him on his other injuries. The fluid leaking was a significant symptom, and the theme of the cross-examination was that Mr. Taylor invented this complaint, going to the core of the defence theory that he is malingering. To uphold trial fairness, Mr. Taylor ought to have been given an opportunity to address this. The trial judge was correct in finding that Zents’ counsel made a deliberate decision not to cross-examine Mr. Taylor on this issue.
(3) Justice Casullo erred by concluding the ear fluid evidence was hearsay.
Finally, Justice Casullo’s reference to hearsay was relevant to her striking of the jury and had no bearing on her findings of a breach of Browne v. Dunn. The references to hearsay were made respecting her refusal to give a lesser remedy than discharging the jury. However, she should not have characterized the hearsay as further complicating the Browne v. Dunn breach. Mr. Taylor was not given a chance to explain the records nor respond to the evidence used against him, which led to the breach and unfairness that could only be remedied by discharging the jury.
The appeal was dismissed, and Justice Casullo’s decision was upheld.
Takeaways
There are two major takeaways from Taylor v. Zents that all litigators should be attuned to.
First, Justice Wilson reminds us as advocates to raise any Browne v. Dunn issues as they happen. In Taylor, plaintiff’s counsel should have raised this issue while Dr. Staab and Dr. Robinson were cross-examined on the ear fluid issue. The earlier such issues are raised, the sooner the trial judge can exercise their duty to ensure trial fairness for all parties. If the issue is not raised and more witnesses testify, it becomes more difficult for the trial judge to remedy the breach.
Second, trial preparation is key when impeaching the credibility of a witness. To ensure that you are not breaching any rules on calling a witness’ credibility into question, any lawyer must prepare to familiarize themselves with Browne v. Dunn and the relevant rules of the Evidence Act, RSO 1990. Particularly sections 20 and 21, which address how to properly contradict a witness using a prior inconsistent statement. Familiarity with these rules can ensure a fair cross-examination and ensure any contradictions are properly explained and elicited.
Taylor v. Zents serves as a reminder that breaches of Browne v. Dunn can be avoided. Counsel need to be alive to not only recognizing breaches so the issue can be raised and rectified, but also knowing the proper procedures for contradicting a witness to ensure trial fairness is upheld.
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