SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 14-757-SR

DATE: 20210602

RE: Sybil Goruk, Plaintiff

AND:

Greater Barrie Chamber of Commerce, Defendant

BEFORE: Justice C. Boswell

COUNSEL: Ronald S. Minken, Kyle D. Burgis and Tejpreet Sambi, for the Plaintiff

Eric Gionet and Jonathan De Biasi, for the Defendant

HEARD: June 2, 2021

RULING ON Browne v. DUNN OBJECTION

[1] Fair trials are the hallmark of the Canadian justice system. While no litigant is entitled to a trial that is perfectly fair, every litigant is entitled to a trial that is fundamentally fair. See R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, para. 193.

[2] Many principles and rules exist to promote trial fairness. One of them has come into central focus here. It is known as the “rule in Browne and Dunn”[^1]. Stated generally, it is a requirement that any counsel intending to impeach a witness on a particular aspect of a case, must give the witness the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

[3] This is a wrongful dismissal action. The defendant’s position is that it had just cause to terminate the plaintiff from her position as the defendant’s executive director. The allegations supporting the assertion of cause largely relate to purported financial irregularities. They are particularized in two paragraphs of the statement of defence.

[4] The plaintiff’s case is in. The plaintiff herself was examined and cross-examined over two full days at the commencement of the case. The defence case has only just begun. The first defence witness is the defendant’s former auditor. As he began to testify about a number of purported financial irregularities, the plaintiff’s counsel objected. He submitted that the defendant should be prohibited from adducing evidence of financial irregularities, in contradiction to the plaintiff’s evidence, on the basis that almost none of the irregularities described in the statement of defence were put to the plaintiff on cross-examination. In other words, he alleged a breach of defence counsel’s obligations under Browne and Dunn.

[5] Given the sweeping position of the plaintiff, it was apparent that the Browne and Dunn issue was going to impact on a great deal of the evidence intended to be adduced by the defendant. The taking of evidence was accordingly paused. Counsel were given the opportunity to make detailed submissions on the issue.

[6] The court is asked to determine whether (1) the defendant has breached its obligations under Browne and Dunn and (2) if so, what remedy is appropriate.

THE BASIC RULE

[7] The so-called “rule” in Browne and Dunn is hardly a rule at all. The Supreme Court of Canada has observed that the requirements of the rule are not “fixed”, which is to say that they’re a little vague. See R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5, at paras. 64-65.

[8] Fundamentally, the rule is one of fairness. As Watt J.A. observed in R. v. Quansah, 2015 ONCA 237, at para. 70, the rule is rooted in the following considerations of fairness:

i. Fairness to the witness whose credibility is attacked:

The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted: R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at para. 17; Browne v. Dunn, at pp. 70

ii. Fairness to the party whose witness is impeached:

The party calling the witness has notice of the precise aspects of that witness’s testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and

iii. Fairness to the trier of fact:

Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict.

[9] In addition to considerations of fairness, the rule also tends to enhance the efficiency of the trial process. For instance, should a witness on cross-examination admit the truth of contradictory evidence proposed by the opposing party, then there will be no need to elicit further testimony on the issue. Moreover, addressing the issue in cross-examination avoids the potential need to recall the witness later to afford her an opportunity to respond to the contradictory evidence.

[10] Although widely regarded as part of the law of evidence, the rule in Browne and Dunn is not a rule of admissibility. See R. v. Vassel, 2018 ONCA 721, at para. 120. If anything, it is a concern about the proper functioning of the adversarial process.

[11] The rule requires a cross-examiner to confront the witness with matters of substance on which the cross-examiner intends to call contradictory evidence. It is not necessary that the witness be confronted with inconsequential details nor where the confrontation would be pointless. In other words, where the witness’s answers are a foregone conclusion.

[12] Fairness demands different things in different circumstances. The application of the rule is, in the result, entirely in the discretion of the trial judge. The Supreme Court has directed that the rule not be applied rigidly. See Lyttle, as above. In this vein, a trial judge has a wide discretion to determine an appropriate remedy in the event of a breach of the rule.

[13] The “nuclear” remedy – the one favoured by the plaintiff in this case – is for the court to a draw an inference, where counsel has failed to cross-examine on a significant point, that the truth of the point is accepted and to prohibit any contradictory evidence to be called about it. But that option is not generally favoured by appellate courts. See for instance, R. v. McNeill (2000), 1998 14658 (ON SC), 38 O.R. (3d) 212 (C.A.) where Moldaver J.A., as he then was, said the following, at paras. 47-48:

In cases such as this, where the concern lies in a witness's inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall. If so, then assuming the trial judge is otherwise satisfied, after weighing the pros and cons, that recall is appropriate, the aggrieved party can either take up the opportunity or decline it…

The mechanics of when the witness should be recalled and by whom should be left to the discretion of the trial judge.

[14] In R. v. Quansah, as above at para. 117, Justice Watt enumerated a number of factors that a trial judge may wish to consider in fashioning a remedy for an established breach of the rule in Browne and Dunn. They include,

(a) the seriousness of the breach;

(b) the context of the breach;

(c) the timing of the objection;

(d) the position of the offending party;

(e) any request to permit recall of a witness; and,

(f) the availability of the impugned witness for recall.

THE ACTION

[15] The plaintiff was fired by the defendant in early 2014. At the time of termination she had worked for the defendant for 17 years. Through the vast majority of that time she was the defendant’s executive director.

[16] The plaintiff asserts that the termination was wrongful. She seeks 24 months’ wages plus aggravated and punitive damages. The defendant asserts that it had just cause to terminate the plaintiff and denies that she is entitled to any damages.

[17] Broadly, the defendant contends that the plaintiff stood in the position of a fiduciary and that she breached the duty she owed to the defendant in a number of respects, most of which are characterized as financial irregularities.

[18] The particulars of the just cause assertion are contained principally in two paragraphs of the statement of defence, namely paragraphs 22 and 29. I will repeat them here because they are central to the Browne and Dunn issue.

22. On or about March 27, 2014 the Treasurer presented a Memorandum to the Board outlining the results of her Review. The Treasurer's review had uncovered a number of questionable transactions pertaining to the Plaintiff which included the possible improper use of business credit cards, improper expensing of personal items, improper accounting and payment of vacation pay, withholding of audit information from the Board, failure to disclose or concealing of related party transactions from the auditor and the Board, making of certain donations without approval or authority, falsifying internal banking records, failure to obtain dual signatures and approval on all operating disbursements and generally very poor controls were being observed.

23. By letter dated April 28, 2014 the Plaintiff was informed of the Defendant's decision to terminate her employment (“the Termination Letter''). The Termination Letter informed thePlaintiff as to the reason for her dismissal as follows:

. .. the Greater Barrie Chamber of Commerce ("the Chamber") have identified the following areas of conduct that have led us to the decision that the immediate termination of your employment for just cause is warranted:

1. Financial matters, including non-disclosure:

a. unauthorized paid vacation

b. undisclosed contracts with family members – non-disclosure to Auditor

c. numerous expenses submitted with no support

d. abuse of "discretionary funds" - no supporting documents

e. mismanagement of budget

f. numerous restaurant charges - failure or refusal to provide support

g. purchase of alcohol contrary to Chamber Constitution

h. Monthly payment of personal American Express card with no supporting documentation, annual fee charged to the Chamber

i. unauthorized salary increase

j. withholding or concealment of information (ie: Audit reports)

k. Changing of bank documents

(i) altered bank transfer document after it was executed by signatories on behalf of the Chamber;

(ii) placing Ms. Goruk as single signature on bank transfer (at time of change of volunteer board) contrary to Chamber Constitution

2. Purposely refusing access to the bookkeeper, including refusal to provide details around financial transactions.

3. Continuing to refuse access or provide answers after discussions with the Auditor and confirmation from Auditor.

4. Past Treasurer resignation - previous Treasurer confirms frustrations with above dealings with Ms. Goruk.

5. Current Treasurer continually asking Ms. Goruk for financial information with little or no disclosure provided.

[19] The plaintiff delivered a reply to the statement of defence. She broadly denied breaching any fiduciary duty owed to the defendant. She specifically denied having engaged in any of the conduct alleged at para. 29 of the statement of defence.

[20] Examinations for discovery were held on December 13 and 14, 2017.

THE POSITIONS OF THE PARTIES

[21] It is unusual to be adjudicating a broad Browne and Dunn dispute before the defendant has either tendered the impugned contradicting evidence or otherwise suggested that the plaintiff ought not to be believed based on factors not put to her in cross-examination.

[22] As I noted, however, it became readily apparent a short time after the commencement of the defence case that the plaintiff intended to object, on Browne and Dunn grounds, to a broad range of evidence expected to be tendered by the defendant.

[23] At the outset of argument, I confirmed with defence counsel that they intend to adduce evidence, from a half a dozen witnesses, to support the allegations detailed at paras. 22 and 29 of the statement of defence.

[24] The plaintiff’s counsel confirmed that they object to much of that evidence being adduced. Mr. Burgis identified the following issues he says the plaintiff was not confronted with during her cross-examination:

(a) From para. 22: the allegations of improper use of business credit cards; improper expensing of personal items; improper accounting and payment of vacation pay; the failure to disclose or concealing of related party transactions from the auditor and the Board; making charitable donations without approval or authority; falsifying internal banking records; failure to obtain dual signatures and approval on all operating disbursements; and generally that very poor controls were being observed

(b) From para. 29, the allegations set out at subparagraphs 1 (b), (c), (d), (e), (f), (g), (h), (i) and k(ii), 2, 3 and 4.

[25] In effect, the plaintiff submits that the defendant’s counsel have failed to meet their Browne and Dunn obligations in relation to almost every aspect of the assertion of just cause. From the plaintiff’s perspective, those obligations have only been observed with respect to the following allegations: that the plaintiff frustrated the treasurer’s attempts to obtain financial records; that she concealed audit reports from the Board; that she took unauthorized paid vacation; and that she altered a bank transfer document after it had been executed by a Board member.

[26] The plaintiff urges the court to infer that defence counsel did not confront the plaintiff with its evidence in relation to the other allegations supporting its assertion of just cause because it accepts the plaintiff’s position on those issues. Moreover, the court is urged to prohibit the defendant from tendering contradictory evidence on those issues where there was a Browne and Dunn breach.

[27] The plaintiff’s counsel do not accept the appropriateness or fairness of recalling the plaintiff to be further cross-examined on issues where there has been an established Browne and Dunn breach. They say she is a fragile 82 year old woman, whose health problems have been exacerbated by testifying the first time. The defendant had a full opportunity to properly cross-examine her and failed to do so. She should not bear the consequences of that failure. Moreover, recalling her would not be efficient and would prejudice the plaintiff because she has already closed her case, having made decisions about what confirmatory evidence to call based, in part at least, on the cross-examination conducted by the defendant’s counsel.

[28] Counsel to the defendant contend that there has been no breach of the rule in Browne and Dunn. They say that all of the issues relating to the assertion of just cause are notorious. The plaintiff has been well aware of those issues since she received her letter of termination. They were subsequently canvassed in the pleadings and in examinations for discovery. The plaintiff is in no way caught by surprise by any of the evidence now sought to be tendered by the defendant. She has had ample opportunity to testify as to her version of events.

[29] Defence counsel point out that many of the contentious issues were covered with Mrs. Goruk in direct examination, or in a general way during cross-examination. They say it is not necessary for them to put every single piece of evidence to her that they intend to rely upon. The plaintiff’s position, they say, would require them to do so.

[30] In the event the court determines that the rule in Browne and Dunn has been breached, they posit that a fair and simple solution is to permit the plaintiff to provide her position in respect of any impugned issues by way of reply evidence.

DISCUSSION

General Observations

[31] I will make several observations of a general nature before I get into the specific alleged breaches of the rule in Browne and Dunn.

[32] In my view, the plaintiff’s position is entirely untenable. Her counsel, in effect, seek to convert a rule of fair play into a rule of admissibility. And then they seek a ruling that the core of the defence case be ruled inadmissible. There is nothing fair, nor even reasonable, about such an approach.

[33] Even if the plaintiff is correct about all of the Browne and Dunn breaches alleged, fairness to her can still be achieved. But fairness to the process – to the fact-finding function of the process in particular – will not be achieved if I were to impose the remedy sought by the plaintiff.

[34] The aspiration of every trial is to arrive at the truth of a matter and thereby do justice between the parties. Our system of justice has settled on the adversarial model as the one best-suited to get at the truth. It is based on the premise that the truth is most likely to reveal itself when each of the parties is given an opportunity to zealously prepare and present its case in its own self-interest and to challenge the opponent’s case with equal zeal.

[35] The plaintiff would essentially have the court hear from only one side in this case, based on the application of a somewhat vague and singularly elastic rule, the overarching purpose of which is to ensure trial fairness. Apart from the inherent irony in that position, it tends to undermine the core, truth-seeking function of the trial. When only one side is effectively heard from, the usual checks and balances of the adversarial system break down. The prospect of the court getting it wrong and settling on a result that is neither just nor fair increases significantly.

[36] This is a civil trial. The bulk of the jurisprudence on Browne and Dunn has arisen in the context of criminal trials. That does not mean that the rule does not apply in the same way in both civil and criminal cases. I can think of no principled reason why it ought not to. But having said that, there are important differences between civil and criminal cases that bear on its application.

[37] In particular, the plaintiff has the benefit of the pleadings, in which the defendant has particularized its allegations against her. She also has the benefit of examinations for discovery during which her counsel were able to extensively probe the position of the defendant on the central issue of just cause. She did not step into the witness box unencumbered by an understanding of the defendant’s case against her. She, and her counsel, knew very well what the live issues in the case are and what the defendant’s position is on each of those issues. This is the backdrop against which the alleged breaches of the rule in Browne and Dunn must be assessed.

[38] Having made those general observations, I will take a moment to canvass the evidence given in direct and cross-examination by the plaintiff on the central issue of just cause. The plaintiff obviously testified at some length about the history of her employment with the defendant, her job description and the terms of her employment. I do not intend to provide a review of all of her evidence, as much of it is not germane to the resolution of the Browne and Dunn issue. I will focus on the evidence addressing the defendant’s assertions of just cause.

Direct Examination

The Discretionary Expense Account

[39] The plaintiff explained that she had a $4,000 discretionary expense account. She said there were no limits on what it could be used for, save that it had to be related to the activities of the defendant. It was frequently used for taking prospective members out for meals. Often alcoholic beverages would be purchased during the meals. She and several other witnesses she called, testified that no one on the Board ever expressed a concern about how she used the expense account, including the purchasing of alcohol.

[40] In short, she said there were no improper uses of her expense account. Her expenses were reviewed monthly and approved by the Board.

Vacation Pay

[41] The plaintiff testified that the treasurer in 2014, Stella Millis, advised her, during a meeting with the two of them and the defendant’s bookkeeper, that she was entitled to vacation pay for those weeks of vacation that she did not use. Ms. Millis, she said, told her that the accumulating vacation pay was a debit in the defendant’s books and that she should take it. After the meeting, she said she spoke to the bookkeeper who confirmed that she had correctly understood what Ms. Millis told her and encouraged her to take the vacation pay, which she did.

[42] In short, there were no unauthorized vacations or vacation pay.

The Pay Raise

[43] Mrs. Goruk denied that she had taken an unauthorized pay raise for herself. She said that the Board approved a pay raise for the staff, other than her. The bookkeeper inadvertently applied the raise to all staff, including her. She said she spoke to the bookkeeper and instructed her to correct the error. She was intending on repaying any overpayment.

Undisclosed Related-Party Transactions

[44] The plaintiff testified at length about the fact that both of her sons did work on contract with the defendant; one did catering; another snow-plowing. She explained in detail the process by which each of the sons came to be contracted. She, and several other witnesses she called, said that it was well-known to board members that her sons were doing work for the board. She said she was not aware that she had a personal obligation to advise the defendant’s auditor that her sons were doing work for the Board.

[45] In short, there were no undisclosed related-party transactions. More generally, she denied withholding any information from the defendant’s auditor.

Unauthorized or Unsupported Expenses

[46] Mrs. Goruk generally denied incurring any unauthorized expenses. Much of her evidence on this issue focussed on travel to annual national Chamber of Commerce conferences. It was in her contract that the defendant would cover her and her spouse’s attendance at these conferences. She said she gave all of the supporting documents for these conferences to the bookkeeper.

[47] In short, there were no unauthorized or unsupported expenses.

The Amex Card

[48] Mrs. Goruk explained in detail her use of the Amex credit card. She obtained it for Board use. At the time, it was one of the only cards that would accumulate air miles, which she cashed in from time to time to cover her flights to work-related conferences. She said that Amex would not issue a card in the name of a not-for-profit organization, so it had to be in her name. She naturally expensed the annual fee to the defendant. Now and then she would use it for personal purchases, but would identify those monthly and reimburse the defendant for them.

Sole Signatures

[49] According to the plaintiff, she had sole signing authority on cheques under $3,000. That was, in her view, never an issue with the Board and was documented policy. Her counsel took some time to go over a series of cancelled cheques on the Board’s account and pointed out that she was not the only one to sign cheques on her own.

The Altered Bank Transfer Direction

[50] Mrs. Goruk described in detail how the defendant had conducted some fundraising to support a program whose aim was to attract new family doctors to Barrie. They raised about $26,000. A decision was made to transfer those funds to a dedicated account, separate from the defendant’s general account. A transfer document was signed by Mrs. Goruk and another Board executive. Later, she said, it was determined that the amount on the transfer was wrong. She said the bookkeeper submitted a revised transfer document to the bank. If it was altered improperly, it was not Mrs. Goruk who did it.

The Allegation of General Mismanagement

[51] Mrs. Goruk denied any mismanagement of the Board’s budget. She called several other witnesses, all past presidents, who confirmed this evidence. She testified that the budget was reviewed monthly by the Board and was always in good shape. Indeed, she had improved the defendant’s financial circumstances materially in her tenure there.

Frustrating the Treasurer’s Access to Financial Records

[52] A considerable amount of testimony was offered about the defendant’s new treasurer in 2013, Stella Millis, and the initial difficulties in the relationship between Mrs. Goruk and Ms. Millis. The assertion that Ms. Millis was impeded in her efforts to obtain financial information was addressed in detail. According to Mrs. Goruk, any issues between her and the treasurer were by and large resolved by early 2014 and their relationship was on good terms.

[53] In terms of the resignation of a past treasurer, Mrs. Goruk said she had nothing to do with it.

[54] As should be apparent, Mrs. Goruk testified in detail about each of the defendant’s assertions of just cause. She was able to do so because she knew what those assertions are, based on the pleadings and the discovery process.

[55] I will turn now to a brief review of the cross-examination insofar as it related to the just cause issue.

Cross-examination

Expenses

[56] Mrs. Goruk was directed to a copy of the defendant’s manual for its directors and executives. She was confronted with the fact that the manual provides her with the authority to incur expenses not exceeding $1,000 without the Board’s approval. She was not otherwise confronted with any particular improper or improperly documented expenses.

Vacation Pay

[57] Mrs. Goruk underwent detailed questioning about her explanation for the vacation pay she took in 2013. She was confronted with a provision in the defendant’s policies about vacation weeks not rolling over from year to year. She was also confronted with some financial statements that tend to undermine her version of how and when the discussion about her receiving a cash payment in lieu of holiday time occurred.

Unauthorized Raise

[58] Mrs. Goruk was cross-examined about the 3% raise she received in late 2013. She maintained that it was a bookkeeping error. She was challenged on the assertion that she intended to repay any overpayment and it was pointed out that she had not, in fact, made any reimbursement. She was also confronted about the fact that she did not bring the error to the attention of the Board.

Related-Party Transactions

[59] The plaintiff was confronted with the defendant’s employee manual and confirmed it applied to her. She was asked at some length about the requirement to use RFPs (Requests for Proposals) before entering into any contracts for services required by the defendant. She was challenged about not properly using this process when contracting with her sons’ companies. She was cross-examined extensively about the contract for snow-plowing services in particular.

The Amex Card

[60] There was minimal cross-examination on the issue of the Amex card. Mrs. Goruk was not confronted with any particular alleged irregularities with respect to her use of the card. She confirmed she used it for personal purchases at times and that the only way the bookkeeper would know if an expense was personal as opposed to business would be for her to identify it.

Sole Signatures

[61] Mrs. Goruk was not specifically confronted about this issue during cross-examination.

The Altered Banking Document

[62] The plaintiff was confronted about her version of events surrounding the altered transfer direction. She was shown the original document on which the alteration is patent. She was confronted with the allegation that she either participated in the alteration or was complicit in it.

Frustrating the Treasurer’s Access to Financial Records

[63] Mrs. Goruk was confronted with the defendant’s position about her reluctance to assist Ms. Millis with access to the books and records of the defendant. Numerous emails were put to her in support of the defendant’s position.

Non-Disclosure to the Auditor

[64] Mrs. Goruk was questioned about her role in terms of the annual audit of the defendant’s financial statements. She was confronted with the assertion that she did not tell the auditor about the related-party contracts she arranged between the defendant and her sons’ companies.

[65] She was asked about a letter the auditor had provided her in 2013 regarding concerns he had with some aspects of the 2013 financial statement. He referred to them as weaknesses. She was confronted with the allegation that she did not provide a copy of this letter to the Board.

General Mismanagement

[66] Mrs. Goruk was questioned in detail about inquires being made by the treasurer and about concerns the treasurer raised with respect to the November and December 2013 financial reports. She was not otherwise confronted with any particular accusations of mismanagement.

Analysis

[67] The plaintiff’s first Browne and Dunn objection arose yesterday. It related to a series of questions defence counsel put to one of the plaintiff’s confirmatory witnesses, a past-president of the defendant’s Board. The questions were about the propriety of certain charitable donations made by the plaintiff – one for $3,000 and another for $1,000. The plaintiff’s counsel objected on the basis that these expenditures had not be raised with the plaintiff. She had had no opportunity to offer an explanation.

[68] I agreed that there was an infringement of the rule in Browne and Dunn. Though the pleadings mention donations obliquely, these specific expenditures had not been put to Mrs. Goruk and she may well have had a perfectly good explanation for them. I offered the plaintiff’s counsel the opportunity to recall her at some point either before her case ended, or as a reply witness, to address it. Counsel declined, at least for the time being.

[69] The next Browne and Dunn objection arose during the direct examination of the defendant’s first witness. The witness is Thomas Bolland. He is the defendant’s former auditor. He was on the cusp of identifying a number of unexplained or questionable transactions identified by the defendant which he said he was shocked to see when they were brought to his attention by a Board member. I do not know what those transactions are because the objection came before his answer.

[70] The reality is, this ruling is a proactive attempt to manage what would otherwise be a recurring string of objections. Without the benefit of knowing what specific conflicting evidence the defendant intends to produce I can deal with the Browne and Dunn issue only generally.

[71] I am provisionally satisfied that the defendant has generally met its obligations under Browne and Dunn. I say that for the following reasons:

(a) As I identified, the plaintiff is well aware, from the pleadings and the discovery process, what the substance of the allegations are against her and what the defendant’s position is on those allegations. That she is so aware can be readily inferred from the fact that she proactively addressed, in her direct examination, each and every assertion made by the defendant in support of their just cause allegation;

(b) I am satisfied that through a combination of direct examination and cross-examination, the plaintiff has had, and has taken, the opportunity to put her evidence in the record on each of the pleaded allegations supporting the assertion of just cause; and,

(c) Contrary to her counsel’s submission, I am satisfied that she was confronted at length by the defendant’s counsel on most of the assertions comprising the claim of just cause.

[72] To this point, I see no unfairness to Mrs. Goruk in the way the evidence has been presented. And I see no unfairness to me, as the trier of fact, in terms of the evidentiary record. I am satisfied that Mrs. Goruk has had an opportunity to address in evidence any of the contradictory evidence or positions of the defence.

[73] Having said all of that, I sense that there may be a shortcoming in terms of some of the particular transactions that the defendant intends to rely upon as “financial irregularities”. Thus far I have heard very little in terms of the particulars of alleged improper expenses. I expect that there may be other instances, like the specific charitable donations example, where particular impugned transactions were not, but should have, been put to Mrs. Goruk, both in fairness to her and in fairness to me, so that I have a complete evidentiary record.

[74] I have, in my view, a sufficient vantage point to be able to determine the appropriate remedy should instances arise, going forward, of particular impugned transactions that Mrs. Goruk ought to be given an opportunity to respond to. And that remedy is to have her recalled to respond to any such evidence.

[75] I understand the argument that it is unfair to Mrs. Goruk to have to testify again. I have three comments:

(a) First, the remedy is designed with fairness to Mrs. Goruk in mind. It will allow her the opportunity to respond to allegations that she ought fairly to have a chance to do;

(b) Second, I do not anticipate that any further examination is going to be extensive. As I noted above, I am generally satisfied that defence counsel have complied with their Browne and Dunn obligations;

(c) Third, I do not accept that Mrs. Goruk is the sort of fragile witness for whom providing additional testimony would be oppressive. This is not, for instance, the sort of case where a sexual assault complainant has had to testify in open court about matters of an acutely personal nature and where she has been cross-examined at length about those matters; matters engaging privacy and dignity issues. I am certain that testifying was not a pleasant experience for Mrs. Goruk, particularly at her age. But she has been able to do so from the comfort of her own home or the home of her son. And she has otherwise been an active and engaged participant in the process. She is available and capable of providing supplemental testimony.

[76] The plaintiff’s counsel also suggested that Mrs. Goruk has been prejudiced because she has already decided which confirmatory witnesses to call. In my view, this assertion is not persuasive. It is a generic argument, untethered to the particular circumstances of this case. In other words the plaintiff has not articulated precisely how she has been prejudiced in terms of calling other potential witnesses.

[77] There is no presumptive remedy for breaches of the rule in Browne and Dunn. But appellate courts have tended to support recalling the witness as a first choice, where appropriate. In this case it is appropriate.

Steps Going Forward

[78] Subject to any further ruling, the defendant shall be at liberty to adduce its case on just cause as it sees fit. I invite the plaintiff’s counsel to identify, however, as the defendant’s evidence is adduced, instances where particular “irregular” transactions are identified that Mrs. Goruk has not had an opportunity to address in her evidence, contrary to the principles of Browne and Dunn. I will invite the parties to make brief submissions on any such transactions and a “running list” will be compiled of evidence that Mrs. Goruk will be entitled to address by way of recall.

[79] Counsel may, of course, address with me, and clarifications required with respect to this ruling.

C. Boswell J.

Date: June 2, 2021

[^1]: (1893), 6 R. 67 (H.L.), 1893 65 (FOREP)