In Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, the Court of Appeal has provided guidance on the correct interpretation of Rule 6.1.01. In writing for the panel (Feldman, Fairburn and Nordheimer JJ.A.), Justice Feldman found that the Rule applies equally to jury and non-jury trials, and that the consent of the parties is required in both situations before a court may order a trial to be bifurcated. This conclusion was based on the clear wording of the Rule: “With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.”
Rule 6.1.01 came into force on January 1, 2010. There has been a considerable amount of litigation surrounding the correct statutory interpretation of the Rule.
In many lower court decisions, Judges and Masters have been reticent to acknowledge that the Rule 6.1.01 usurped the Court’s previous, inherent jurisdiction to bifurcate a non jury trial based on the interests of justice. Lower courts commonly found that they were not bound by the 2015 decision of the Divisional Court in Bondy-Rafael v. Potrebic, despite Justice Molloy’s conclusion that the new Rule 6.1.01 occupied the field on the ability of the Court to order bifurcation. The 2009 decision of the Court of Appeal in Kovach (Litigation Guardian of) v. Kovach, also reached a similar conclusion.
In Duggan, the Master, Judge, and the 2-1 majority of the Divisional Court, all concluded that the Court was still permitted to bifurcate non jury trials without the consent of the parties. The Court of Appeal rejected this.
In following the dissent from the Divisional Court decision below, the most widely applicable element of Justice Feldman’s decision in Duggan, is the Court’s comments on stare decisis:
Lower courts have relied on Rule 1.04, as well as the Supreme Court of Canada decisions of Carter v. Canada (Attorney General), and Hryniak v. Mauldin, to find that strict compliance with stare decisis was not required. The flawed analysis was that there has been a recent, fundamental shift in the application of the Rules of Civil Procedure – where there is now an emphasis on making the litigation process “accessible — proportionate, timely and affordable.” Courts concluded that this change allowed a reconsideration of prior, appellate decisions on the proper interpretation of Rule 6.1.01. The Court of Appeal rejected this, in finding that the Civil Rules Committee would have measured such policy considerations prior to drafting Rule 6.1.01.
The Court provided guidance on the applicability of stare decisis, and particularly when a conclusion from an appellate court can be considered obiter dictum or ratio decidendi (integral analysis of the case, and therefore binding). The Court of Appeal found that Justice Molloy’s analysis of 6.1.01 in Bondy-Rafael v. Potrebic, involved both jury and non-jury situations, causing those conclusions to be binding on lower courts. The Court also noted that Bondy-Rafael v. Potrebic, was decided after Hryniak v. Mauldin, as well as the Court of Appeal’s finding in Mars Canada Inc. v. Bemco Cash & Carry Inc., that Rule 6.1.01 does not apply in the context of a summary judgment motion. Thus, the was no basis for the courts below to ignore the doctrine of stare decisis.
At paragraph 63, Justice Feldman concluded:
The doctrine of stare decisis makes an important contribution to the cost-effective and efficient management of litigation by ensuring that a legal issue, including the interpretation of a legislative provision, regulation or rule, once decided, is not relitigated in the next case. In my view, the courts below erred in law by failing to treat the Bondy-Rafael case as binding.
Author Meredith Harper was a lawyer on this decision. She is also co-chair of the firm’s Appelate Advocacy practice group. If you have a question about this decision or a similar file, please contact Meredith at 416-777-5207.