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Expanded Case Details

Pictou County Health Authority (2012), 218 L.A.C. (4th) 335 (Slone)

The rule in Browne v. Dunn is considered at page 498 of the Illness and Absenteeism manual. It applies to both lawyers and others who are presenting a case to a quasi-judicial tribunal. Essentially, the rule is founded in the right to a fair hearing. Generally speaking, it prohibits a cross-examiner from relying on subsequent contradictory evidence to impeach an earlier witness without putting the contradictory evidence to that witness.

In this particular case, the rule was held to be inapplicable as a consequence of two circumstances. Firstly, neither counsel was aware, when questioning one of the earlier witnesses, that a subsequent witness (both of whom were part of the employer’s unionized staff), was going to lead the spontaneous testimony that she did. Secondly, it was not during the union’s cross-examination of the witness, but rather the employer’s direct examination of the employee witness, that the information came forward.

Rather than exclude the evidence, the arbitrator held that it could not be used to weaken the credibility of the earlier witness. The arbitrator also devalued the evidence of the witness on this point “on the basis that it has not been tested against other evidence that might have either confirmed or cast doubt on it.” The decision leaves open the question of whether the particular witness should have been recalled to address the evidence that was led subsequent to his being called as a witness.

The rule in Browne v. Dunn is considered at page 498 of the Illness and Absenteeism manual. It applies to both lawyers and others who are presenting a case to a quasi-judicial tribunal. Essentially, the rule is founded in the right to a fair hearing. Generally speaking, it prohibits a cross-examiner from relying on subsequent contradictory evidence to impeach an earlier witness without putting the contradictory evidence to that witness.

In this particular case, the rule was held to be inapplicable as a consequence of two circumstances. Firstly, neither counsel was aware, when questioning one of the earlier witnesses, that a subsequent witness (both of whom were part of the employer’s unionized staff), was going to lead the spontaneous testimony that she did. Secondly, it was not during the union’s cross-examination of the witness, but rather the employer’s direct examination of the employee witness, that the information came forward.

Rather than exclude the evidence, the arbitrator held that it could not be used to weaken the credibility of the earlier witness. The arbitrator also devalued the evidence of the witness on this point “on the basis that it has not been tested against other evidence that might have either confirmed or cast doubt on it.” The decision leaves open the question of whether the particular witness should have been recalled to address the evidence that was led subsequent to his being called as a witness.



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