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.