Browne v. Dunn - Impeach the Witness’s Credibility

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Date Retrieved:	2024-04-20
CLNP Page ID:	94
Page Categories:	[Legal Principles]
Citation:	Browne v. Dunn - Impeach the Witness’s Credibility, CLNP 94, <https://rvt.link/5r>, retrieved on 2024-04-20
Editor:	Sharvey
Last Updated:	2023/05/16

Untinen v Dykstra c.o.b., Dykstra Roofing & Renovations, IKO Industries Ltd., 2016 ONSC 4721 (CanLII)

[40] The Appellant claims that the decision of the trial judge to allow the Respondent IKO to present evidence contrary to the evidence of the Appellant’s experts without seeking to cross-examine them was a breach of the rule in Browne v. Dunn.

[41] As set out by the Appellant, the rule in Browne v. Dunn states that there is a general duty on counsel to put a matter directly to a witness if counsel is going to later adduce evidence to impeach the witness’s credibility or present contradictory evidence: see R. v. Pasqua, 2009 ABCA 247 (CanLII), 9 Alta. L.R. (5th) 89, at para. 17.

[42] The Appellant claims that the trial judge allowed a breach of the rule in Browne v. Dunn by allowing Mr. Fee to testify as to the difference between fissures and cracks without having cross-examined the Appellant’s expert on this issue. Further, there was no cross-examination on the extent of the damage to the shingles and on the repair cost for hot sealing the roof.

[43] On the difference between fissures and cracks, I find that the Appellant’s experts did not comment on fissures and how these differ from cracks. As such, there was no contradictory evidence. Further, while Mr. Fee commented on what appeared to be fissures in the shingles, he clearly stated in his evidence that he could not be certain without inspecting those shingles. I find that this was not contradictory evidence.

[44] As for the evidence of Mr. Fee relating to the solution of hot sealing the roof and the associated cost, I find that the Appellant’s experts did not deal with this issue in any sufficient detail to require a cross-examination to satisfy the rule in Browne v. Dunn. The Appellant’s expert Mr. Stephenson only briefly referred to applying a sealant and made no comment on the associated cost. As such, the evidence of Mr. Fee on these issues does not offend the rule in Browne v. Dunn.