Simon's Megalomaniacal Legal Resources

Civil Litigation - Browne v Dunn (2)

. Shahin v. Intact Insurance Company

In Shahin v. Intact Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the appellant applied for 'catastrophic impairment' accident benefits which were denied by the insurer.

Here the court found procedural unfairness where the tribunal applied documentary evidence not considered by the parties in examination, an issue that the court characterized as one of documentary 'Browne v Dunn' status:

Did the Tribunal breach procedural fairness by relying on documents neither party referred to and that Ms. Shahin was not given an opportunity to address?

[25] Ms. Shahin submits the Tribunal’s repeated reliance on documents neither party referred to also breached procedural fairness. I agree.

[26] The adjudicators had voluminous documents before them. At the outset of the hearing, they advised the parties that “any document not referred to by pinpoint reference during oral arguments will not be reviewed.”

[27] The Tribunal then relied in its decision on numerous documents neither party had referred to. The parties agree that, although found in their hearing briefs, these documents were never admitted into evidence.

[28] This violated procedural fairness. The Court of Appeal has described the rule in Browne v. Dunn[2] as preventing the “ambush” of a witness by not giving the witness an opportunity to state their position on later evidence that contradicts them on an essential matter: R. v. Verney, 1993 CanLII 14688 (Ont. C.A.), at p. 376; R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 75-86. Here, the Tribunal made negative findings about credibility and impeached Ms. Shahin’s testimony using excerpts from medical records she was never questioned on.

[29] For example, at para. 61 of their decision, when discussing Ms. Shahin’s level of impairment, the adjudicators noted that in her testimony, Ms. Shahin stated that she had lost interest in spousal intimate relations because of the car accident. The adjudicators disbelieved her on this point, relying on medical records indicating that she suffered from uterine issues. These records and her uterine issues, including any impact on intimacy, were not put to Ms. Shahin. She had no opportunity to provide an explanation or response.

[30] At para. 73 of their decision, the adjudicators concluded that Ms. Shahin had not suffered a “substantial inability to perform the essential tasks of her pre-accident employment.” It relied on a job site analysis that found she did not have an issue with these tasks. But the job site analysis was not in evidence. The reference to the job site analysis was found in a report by an occupational therapist. Ms. Shahin alleges the OT’s report summarized a 70-page report in two paragraphs. Neither party referred to nor relied on this summary.

[31] Intact submits this reliance was not prejudicial because Ms. Shahin was cross-examined on her inability to work. But the cross-examination focused on 2018, not the 2015 period relied on by the adjudicators.

[32] The Tribunal relied on other evidence as well to conclude Ms. Shahin’s impairment was not catastrophic. Its assessment was highly fact dependent. But it is impossible to conclude the information she was not questioned on was of little significance. This information formed part of the Tribunal’s justification for its conclusion on Ms. Shahin’s level of impairment. It was an error to rely on this information, which was not in evidence, was not drawn to the parties’ attention, and which Ms. Shahin was not questioned on, in support of the Tribunal’s conclusion on this central issue.

. R. v. Foreshaw

In R. v. Foreshaw (Ont CA, 2024) the Court of Appeal considered the important litigation principle from Browne v Dunn, here in an appeal regarding jury instruction:

(b) Legal Principles

[53] Underlying the rule in Browne v. Dunn is the principle of fairness. It was developed to respond to a situation where a witness is contradicted by other testimony, but where opposing counsel have not put the alternate version of events to the witness in cross-examination.

[54] The rule as it is presently understood was most comprehensively described by Watt J.A. in R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81. The following points from his analysis are relevant to this appeal:

. It is not a fixed rule, and the extent of its application lies within the sound discretion of the trial judge and depends on the circumstances of each case.

. Compliance with the rule does not require that every scrap of evidence on which a party desires to contradict the witness for the opposite party be put to that witness in cross-examination. Instead, the cross-examination need only confront the witness with matters of substance on which the party seeks to impeach the witness' credibility and on which the witness has not had an opportunity of giving an explanation because there has been no suggestion whatever that the witness' story is not accepted.

. It may be apparent from the tenor of counsel's cross-examination that the cross-examining party does not accept the witness' version of events. Where the confrontation is general, known to the witness and the witness' view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.

. The requirement of cross-examination does not extend to matters beyond the observation and knowledge of the witness or to subjects upon which the witness cannot give admissible evidence.

. Appellate courts must accord substantial deference to the discretion exercised by a trial judge in deciding what remedy is appropriate for breach of the rule.

....

[60] In summary, I see no basis for appellate interference in the highly discretionary decision of the trial judge to provide a Browne v. Dunn instruction. Accordingly, I would dismiss this ground of appeal.

. Manafa v. Tannous

In Manafa v. Tannous (Div Court, 2023) the Divisional Court considers the rule in Browne v Dunne, here as a procedural fairness issue (here in small claims court):

Preventing the Appellant from Relying on Documentation

[76] I understood that the Appellant had abandoned this argument during the hearing. However, I will briefly address the argument. The argument is described in paragraph 113 of the Appellant’s factum:

113. The second violation of procedural fairness is the prevention of the Appellant from using materials in the documentary record properly before the Court and marked as exhibit [sic] and which supports her case, on the ground that it was not ‘put to the Respondent’ in cross-examination and therefore she should not rely on it and that the Appellant cannot give evidence about a version of facts that was not put to the Respondent when he was cross-examined. [Citations omitted]

[77] I have reviewed the relevant excerpt from the transcript. The Deputy Judge correctly identified a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). This rule was recently explained by the Court of Appeal in R. v. Quansah, 2015 ONCA 237, (2015) 125 O.R. (3d) 81. The Court stated (at para. 76):

[76] The rule in Browne v. Dunn, as it has come to be known, reflects a confrontation principle in the context of cross-examination of a witness for a party opposed in interest on disputed factual issues. In some jurisdictions, for example, in Australia, practitioners describe it as a "puttage" rule because it requires a cross-examiner to "put" to the opposing witness in cross-examination the substance of contradictory evidence to be adduced through the cross-examiner's own witness or witnesses.

[78] The Court goes on to explain that the rule in Browne v. Dunn is a fairness rule. In this case, the Deputy Judge determined that the Appellant had failed to cross-examine the Respondent about a different version of events when he was testifying. As a result, the Appellant could not, as a matter of trial fairness, rely on that version of events. There was no error in this conclusion.