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Parties’ consent to bifurcate liability, damages issues needed for both jury, non-jury trials: ONCA

Personal injury claim brought against apartment lessor after child fell from balcony

Parties’ consent to bifurcate liability, damages issues needed for both jury, non-jury trials: ONCA

The court needs the parties’ consent before it can order bifurcation of the trial on different issues, whether a jury or a non-jury trial is involved, said the Ontario Court of Appeal in a recent personal injury case.

In Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, a four-year-old infant suffered from head injuries after he fell from the balcony of the apartment leased by his parents. A personal injury claim was brought against the respondent lessor of the apartment. In 2017, when the child was 11 years old, the child and his parents filed a motion to extend the time of three years to set the action down for trial so that they could get more evidence of the child’s injuries as they stabilized and as he grew older.

The respondent opposed this motion and filed a cross-motion to bifurcate the trial on the issues of liability and damages, so that the liability hearing could proceed before the damages hearing. The master granted an extension of time for the assessment of damages and granted the request to bifurcate the trial.

The child and his parents appealed, arguing that rule 6.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, did not give the court the jurisdiction to bifurcate the trial without the parties’ consent.

The Superior Court and Divisional Court dismissed this appeal, holding that, while rule 6.1.01 allows the court to bifurcate a jury trial with the parties’ consent, for a trial by judge alone, the court has the inherent jurisdiction to bifurcate even without the parties’ consent. The dissenting judge, on the other hand, said that rule 6.1.01 applies both to jury trials and non-jury trials, so consent is needed in both situations before a court can order bifurcation.

The issue before the Court of Appeal for Ontario was whether rule 6.1.01 requires the parties’ consent for both jury and non-jury trials, or whether the court retains its inherent jurisdiction to bifurcate a non-jury trial even if one or both parties have objected. The appeal court, agreeing with the dissenting judge’s reasons, allowed the appeal and set aside the bifurcation order.

The appeal court analyzed the wording of the rule, which on its face does not distinguish between jury and non-jury cases. The appeal court then examined the purpose and the context of the rule, which was enacted in 2008 and which came into force in 2010 as a part of civil justice system reform efforts following a 2007 report of Honourable Coulter Osborne. The Osborne Report did not suggest that different rules should apply to jury and non-jury cases, the appeal court noted.

On the issue of inherent jurisdiction, the appeal court said that the word “may” in the rule gives the court the discretion to make a bifurcation order with the parties’ consent, but does not require the court to make such an order, even if the parties have consented. This is consistent with the philosophy of avoiding multiplicity of legal proceedings and with the cautionary approach to the court’s inherent jurisdiction to make such orders.

The appeal court said that the language of the rule makes it impossible for the court to make a bifurcation order without the parties’ consent.

“[T]he rule cannot be interpreted to mean that the court is granted the discretionary power to order bifurcation where there is consent, but it can also order bifurcation without consent,” wrote Justice Kathryn Feldman for the Ontario Court of Appeal. “The authority of the court to make the bifurcation order is predicated on the opening words of the rule, ‘with the consent of the parties’.”

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