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Evidence – Rule in Browne v. Dunn

Posted on October 9, 2019 | Posted in Civil Litigation, Five Liners

Curely v. Taafe 2019 Ont CA

Paralegal sued lawyer for malicious prosecution relating to lawyer’s complaint that paralegal refused to return lawyer’s files and subsequent criminal charges, subsequently withdrawn. Court of Appeal held that trial judge’s conclusions for granting relief in favour of paralegal were replete with errors. Paralegal had to prove that lawyer furnished evidence which she knew to be false or withheld information which she knew to be true and there was no evidence of this; the only evidence was that the police exercised independent discretion. In coming to his erroneous decision, the trial judge applied the rule in Browne v Dunn. That rule states that a party cross-examining a witness called by the opposite side must put any contradictory evidence to the witness to allow the witness to provide an explanation before that party can adduce contradictory evidence to impeach the witness’ credibility. The controversy related to a letter from the paralegal admitting that she had the lawyer’s files and raising conditions upon their release. In this case, the lawyer had cross-examined the paralegal regarding the letter and merely, in her own testimony, noted that she had delivered that letter to the police. There was no unfairness. Note: the 2 remedies for a contravention of the rule are i) account for the breach of the rule when assessing a witness’ credibility in deciding the weight to attach to that evidence; or (ii) allow counsel to recall the witness whose evidence was impeached without notice. Finally, the court held that the plaintiff did not mitigate damages; she provided no evidence other than her own testimony that the charges affected her ability to obtain work from other lawyers. The court held that the judge could not take judicial notice of damages because judicial notice may be taken only when the facts (i)  are so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (ii) are capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.


Jonathan Speigel


Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.


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