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.