How should a trial judge deal with a failure to cross-examine on the point?

Weiler J.A. described how a trial judge should deal with a failure to cross-examine on the point: 20 The effect that a court should give to a breach of the rule in Browne v. Dunn will depend on a number of factors. In deciding how to address a breach, a trial judge may consider: • The seriousness of the breach; • The context in which the breach occurred; • The stage in the proceedings when an objection to the breach was raised; • The response by counsel, if any, to the objection; • Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation; • The availability of the witness to be recalled; and • In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained. Thus, the extent of the rule's application is within the discretion of the trial judge after taking into account the circumstances of the case.