In Taylor v. Zents, the Ontario Court of Appeal upheld a Trial Court’s order discharging the jury and awarding over $1 million in damages to the Plaintiff. The appellate Court agreed with Justice Casullo, finding that defence counsel had breached the rule in Browne v. Dunn by failing to cross examine the plaintiff on a material piece of evidence before defence counsel cross-examined the plaintiff’s expert neuropsychologist on the issue.
The rule in Browne v. Dunn is one of fairness. A party intending to impeach a witness’s credibility must first put the issue to the witness during cross examination, so that the witness is given a chance to respond. The rule requires that only substantive matters be put to the witness at first instance, rather than any possible piece of evidence for impeachment.
In this case, an ER doctor at the hospital diagnosed the plaintiff with a concussion a day after a motor vehicle accident. Defendant’s counsel focused his case on the theory that the plaintiff was exaggerating his head injury, and that he had inconsistently reported his symptoms after the accident. The evidence demonstrated that the plaintiff had waited three years after the accident to report to his treatment provider that he noticed fluid leaking from his ear in the days after the accident. Defence counsel did not cross examine the plaintiff on that evidence.
Later at trial, defence counsel cross examined the plaintiff’s treating neuropsychologist who had been qualified as both a participant expert and a Rule 53 expert, Dr. Joanna Hamilton. He raised with Dr. Hamilton the issue regarding the plaintiff’s delayed reporting of the fluid leak in his ear, suggesting to her that the plaintiff was malingering because he had delayed reporting a significant symptom. Dr. Hamilton admitted that any such inconsistent reporting would amount to a “marked, material, significant, [or] important” discrepancy that challenged her diagnosis.
At that point in the trial, Justice Casullo, on her own initiative, raised the breach of the rule in Browne v. Dunn. She found that defence counsel deliberately chose not to raise the ear leak issue during the plaintiff’s cross examination. She held that the breach had “irreparably tainted the jury” and granted the plaintiff’s motion to strike the jury. In her decision, she noted that dismissing the jury was the only just remedy for the breach, because in her opinion, recalling the plaintiff to testify on the issue might give the jury the impression that the plaintiff had hidden the evidence, thereby supporting the defendant’s theory that the plaintiff was not a credible witness.
The Court of Appeal fully agreed with Justice Casullo, finding that the breach was a “clear violation” of the Browne v. Dunn rule. It found that the ear fluid leak issue was not a collateral matter, but an issue that went to the crux of the plaintiff’s case. The Court of Appeal dismissed the defendant’s argument on appeal that the ear fluid evidence impeached Dr. Hamilton’s opinion, not the plaintiff’s credibility. On that point, the appellate court held that attacking Dr. Hamilton’s opinion was inextricably linked to attacking the plaintiff’s credibility. The appellate court found that the plaintiff’s reasons for why he did not immediately report the ear leak symptom was relevant to Dr. Hamilton’s credibility assessment of the plaintiff and to the foundations of Dr. Hamilton’s opinion.
The Court of Appeal also dismissed the defendant’s argument that because Dr. Hamilton had treated the plaintiff for five years and therefore could not be impartial, the trial judge erred in qualifying Dr. Hamilton as an expert. Rather, the Court found that Justice Casullo properly exercised her discretion in finding that Dr. Hamilton could be an objective and impartial witness at trial.
This outcome is notable because ultimately it had significant ramifications for the defendant: not only did the defendant lose the jury, but the Court of Appeal upheld the trial judge’s award for damages to the plaintiff of over $1.1 million. The trial judge’s decision, upheld on appeal, is a reminder for counsel to identify early in cross examination preparation the key issues material to an opposing party’s credibility. Moreover, counsel objecting to a cross examination question must immediately raise any perceived breach of the rule in Browne v. Dunn during cross examination. The decision also cautions that where the court finds the rule is breached, alternative remedies to striking the jury such as a correcting instruction to the jury or recalling the witness to testify may not be held to be adequate or available.
Jonathan White is the author of this blog and a lawyer at ZTGH. If you have a question about this decision or a similar file, please contact Jonathan at 416-777-5204.
