One of the basic principles of the litigation process is a claimant’s right to have both the issue of liability and the issue of damages heard by a single jury. The right to a jury trial is grounded in common law and s.108(1) of the Courts of Justice Act. The issue of whether or not a court can order bifurcation of a jury trial has recently become an issue for the courts. The Court has consistently held that there is no inherent jurisdiction in the court to order bifurcation of a jury trial. (see Kovach v Kovach 2010 ONCA 126)

In January 2010 the Rules of Civil Procedure were amended and Rule 6.1.01 allowed that there could be a bifurcation where the parties agree. In Kovach the Ontario court of Appeal in reviewing the wording  said that Rule 6.1.01 “signals that, in the opinion of the Rules Committee at least, the bifurcation of a trial, jury or non-jury, is not generally a good idea unless the parties consent”.  In Bondy-Rafael, et al. v Potrobic et al., 2015 ONSC 3655 (Div Ct) J. Malloy held that consent was required for bifurcation in both jury and non-jury trials. 

The central issue the courts have struggled with is how this application of Rule 6.1.01 aligns with the direction of the Supreme Court of Canada in Hyriniak in terms of making the system more accessible and cost efficient. However the Courts of Justice Act also recognizes the need to avoid a multiplicity of proceedings as confirmed in s.138. The balance sought is where the determination of an issue or issues before trial or with a mini trial would eliminate some parties or narrow the issues for trial.

This struggle to find a balance between the right to a single jury trial and the efficiency of the proceeding was the background to Robichaud et al. v. Constantinidis et al., 2008 ONSC 4204 (Ont. Sup. Ct).

In this action, the Plaintiffs claimed damages arising from a motor vehicle accident. The Plaintffs’ vehicle was rear-ended by a car operated by the Defendant, Kyriakos Constantinidis, and owned by the Defendant, his mother, Sofia Constantinidis. The Plaintiffs claimed damages in excess of Sofia Constantinidis’ policy limits. The Plaintiff’s insurer, Coseco Insurance Company (“Coseco”) was to be responsible if the uninsured or underinsured motorist coverage applied. The Plaintiffs agreed to limit their claim to Sofia Constantinidis’ policy limits and not seek contribution from Coseco if a determination was made that Kyriakos Constantinidis had the consent of his mother to drive the car. Jury Notices were delivered on behalf of Sofia Constantinidis and Coseco.

Coseco sought to separate the issue of consent from the damages determination on a motion, as it believed it could be removed from this action by establishing that Kyriakos Constantinidis was driving with the consent of his mother. Coseco advanced three ways the consent and damages determination could be separated: (1) bifurcate the jury trial; (2) strike the jury notices and bifurcate the non-jury trial; or (3) order a mini-trial under rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Sofia Constantinidis did not consent to any of the relief sought, and the Plaintiffs took no position. For the reasons below, Coseco’s motion was dismissed.

No Jurisdiction to Bifurcate a Jury Trial

In deciding there is no jurisdiction to bifurcate a jury trial without the consent of the parties, Akbarali J. recognized that the Court is bound by the decisions of Kovach (Litigation Guardian of) v. Kovach and Bondy-Rafael v. Potrebic. In Kovach, the Ontario Court of Appeal found there is no jurisdiction to order bifurcation in a jury trial unless all the parties consent. In Bondy, at para. 38, the Divisional Court held that rule 6.1.01 is clear and comprehensive, and requires consent as a precondition to the motion judge having any discretion to exercise. 

Coseco referred to the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 as a fundamental change – the Supreme Court of Canada in that case called for a culture shift away from conventional trial to balance procedure and access to justice.  However, the Court disagreed with Coseco as the Hryniak decision was previously considered in Bondy. 

Jury Notices Should Not Be Struck

The Court found it was inappropriate to strike the jury notice having found, inter alia, the legal framework of implied consent is not too difficult for a jury; it is the duty of the trial judge to provide proper instruction; and the Court’s determination to not strike the jury notice does not bind the trial judge.

Appropriateness for Bifurcation

Akbarali J. at paras. 35-37 stated that if she had the jurisdiction to bifurcate, this would be an appropriate case to bifurcate the issue of consent from the damages trial. 

A Mini Trial Should Not be Ordered

The Court did not direct a mini-trial, as giving directions in advance of a summary judgment motion would involve usurping the motion judge’s discretion as to whether and how to exercise fact-finding powers. At para. 51, Akbarali J. stated it is the motion judge’s decision to, for example, find the existence of a jury notice in the absence of appellate authority on the topic. 


Akbarali J., speaking for the Ontario Superior Court of Justice, held that she did not have inherent jurisdiction to bifurcate a jury trial; the case before her was not appropriate to strike the jury notice; and she could not order a mini-trial under rule 20 of the Rules of Civil Procedure in the absence of consent of the parties. This decision confirms that the threshold required to displace a litigant’s right to a jury trial remains high.

Thomas Hanrahan is a partner and member of the Appellate practice group. If you have a question about this blog or a similar file, please contact Tom