Rule 6.1.01. of The Rules of Civil Procedure became effective on January 1, 2010 and states;
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 reinforces the basic right of a litigant to have all issues in dispute resolved in one trial. Prior to the change in Rule 6.1.01, the Court retained “narrowly circumscribed power…only in the clearest cases”[1] to bifurcate or split a trial in the interest of justice.
Interestingly, Rule 6.1.01 did not follow the recommendations of The Osborne Commission which had recommended that the Rules be amended to permit bifurcation on motion by the parties or on the Court’s initiative.
Surprisingly, even after the enactment of Rule 6.1.01 which is clear and simple on its’ face, the Court continued to uphold its’ inherent jurisdiction to bifurcate non-jury trials without the consent of all parties. [2]
In Soulliere v The Estate of Isabelle Robitaille, Justice R. Smith was faced with a motion to bifurcate a non jury trial without the consent of all parties. Soulliere involved a motor vehicle accident in which the plaintiff suffered catastrophic injuries when the vehicle in which he was a passenger, slid off the shoulder of the road and overcorrected into an oncoming car.
The law suit sought damages for over 20 million dollars. The responding policy had already paid out close to their limits. There were twenty-five expert reports on damages and three weeks of the five week trial were scheduled to address evidence on damages.
In addition to suing the owners and drivers involved in the collision, the plaintiff named the Counties for failing to ensure the shoulder of the road was safe. The County defendants brought the bifurcation motion three weeks before the commencement of the trial to separate liability and damages. Justice R. Smith held that the Court still had an inherent jurisdiction to bifurcate a non jury trial without the consent of all parties.
Justice R. Smith followed Trinity Anglican Church v. Janeiro[3] in holding that clearer language in Rule 6.1.01 would be required to remove the court’s inherent jurisdiction and he distinguished the within non jury case from Kovach (Litigation Guardian of) v. Linn[4] wherein the Ontario Court of Appeal held that a judge does not have jurisdiction to order bifurcation of a jury trial in the absence of the parties’ consent under rule 6.1.01.
Of note, in applying his discretion, Justice R. Smith deferred to the well accepted, but not exhaustive[5], fourteen factor list in Bourne v. Saunby.[6] resulting in a finding that the plaintiff would suffer too much prejudice should the bifurcation order be granted given the trial was scheduled to proceed three weeks from the motion date and the policy limits the plaintiff was receiving were likely to run out prior to the hearing of a damages trial. The moving parties did not meet the onus of proving on a balance of probabilities that the action was an “extraordinary and exceptional case or that there are savings of time and costs that a separate hearing on liability and damages should be ordered”[7].
To date, there have been no further cases addressing the correctness of Justice R. Smith’s decision. The result being, despite the wording of Rule 6.1.01, the Court retains discretion, albeit to be applied rarely, to impose bifurcation on litigants in non jury trials.
[1] Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler and Mills(1989), 55 O.R. (2d) 46 OCA, para.11
[2] Soulliere v. The Estate of Isabelle Robitaille (2013), ONSC 5073 (CanLII) SCJ
[3] Trinity Anglican Church v. Janeiro, 2012 O.J. No. 3791 (ONSC)
[4] Kovach (Litigation Guardian of) v. Linn, 2010 ONCA 126 ONCA
[5] Aghsani v. Briglio [2006] O.J. No. 2071, 2006 CanLII 17322 (S.C.J.)
[6] Bourne v. Saunby [1993] O.J. No. 2606 (ONCJ)
[7] Soulliere, page 9, paragraph 49
