Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Fairness - Browne v Dunn

. 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.