Hutton v. Way (1997)

Hutton v. Way (1997)

Hutton v. Way (1997), 105 O.A.C. 361 C.A. [Hutton]

In Hutton, the Ontario Court of Appeal applied the R v. Corbett decision in a personal injury case. The court held that the trial judge erred by allowing unduly prejudicial cross-examination of the plaintiff. 

The plaintiff in Hutton had two criminal convictions in the 1970’s; one for sexual assault with a weapon and another for possession of marijuana.  The defence relied on Ontario Evidence Act to cross-examine the plaintiff on the subject of his past criminal record.  To justify the admissibility of the criminal record evidence, the defence alleged that the credibility of the plaintiff was in issue.   

Prior to his accident, the plaintiff worked at a residential treatment center for troubled boys.  The plaintiff testified that he was unable to resume his employment at the center due to his injuries.  The defence maintained that the plaintiff resigned because he knew he would be fired due to his criminal record.  

The trial judge agreed with the position of the defence and allowed the cross-examination.   The plaintiff appealed.  The Ontario Court of Appeal found the evidence to have been improperly admitted.  At paragraphs 4-5, the court held as follows:

4. [T]he fact that the appellant might be terminated for reasons that had nothing to do with his qualifications or work record is not only speculative but irrelevant in a civil action for personal injuries.  The nature and extent of his injuries had nothing to do with his early criminal record… The only result of this evidence was to paint the appellant as a sex offender and create a hostile environment for his claim.  

5. As indicated, the stale dated criminal record of the appellant did not relate to offences involving fraud or dishonesty.  While prima facie admissible under the Ontario Evidence Act, these convictions should have been excluded on the Corbett application brought by the appellant.   


At paragraphs 7-10, the court amended the judgment to increase the damages in excess of the last two offers to settle which were made by the defendant. 

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Cowie v. Cowell

Cowie v. Cowell (1995), O.J. No. 4720 (S.C.J.) Aff’d on appeal [Cowie]

 Cowie outlines the manner in which a cross-examination on the subject of prior convictions may be conducted.  The cross-examiner has to address each prior conviction individually.  It follows that the court will evaluate the admissibility of individual convictions before even considering the criminal record as a whole.

In Cowie, at the conclusion of the cross-examination, the plaintiff was asked if she had ever been convicted of a criminal offence.   The plaintiff replied in the affirmative.  There were no follow-up questions.  The counsel for the defence explained to the court that the question was in regards to a 1983 conviction for credit card fraud

The plaintiffs took the position that the question put her in an unduly prejudicial light and that no instruction by the trial judge could reasonably be expected to blunt or deflect the prejudice which would result to the plaintiff.  As it was no longer possible for the jury to judge the plaintiffs’ claim fairly, the plaintiffs moved to strike the jury notice on the ground of prejudice.

In reviewing the application to strike the jury, Horkin J. considered his right as a trial judge to exclude evidence obtained in accordance with S.22(1) of the Ontario Evidence Act (OEA).  At paragraph 5 he stated that:

Section 22 is permissive. It is important to bear in mind that the trial judge always has the discretion to exclude from the trial, evidence where the prejudice it creates outweighs its probative value. The trial judge as well always has the discretion to exclude evidence of previous convictions or criminal record in those cases where a mechanical application of the Evidence Act would undermine the litigant’s right to a fair trial by an impartial jury, and that language is paraphrased somewhat from Corbett, which is a case, of course, in the criminal context.

Horkin J. agreed that asking whether the plaintiff “was ever convicted of a criminal offense” can be unduly prejudicial.  Furthermore, it leaves the court in a vacuum. The court has no way of knowing which offense the plaintiff referred to.  Without the nature and the date of the offense, the court cannot instruct the jury why the plaintiff’s criminal record is or is not a matter of importance.

Horkin J. proceeded to explain the appropriate manner in which to raise the prior criminal record of a witness.  At paragraphs 6, he noted that the question should have been worded as follows:

 “Where you convicted of the offence of criminal fraud in 1983?”

Horkin J. concluded that no instructions could undo the prejudice created in the minds of the jury.  He struck the jury in accordance with the plaintiffs’ motion.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.