Bifurcating Non-Jury Trials

In Duggan v. Durham Region Non-Profit Housing Corp., the Divisional Court was split on whether consent of the parties is required to order bifurcation of non-jury trials.

Rule 6.1.01 of the Rules of Civil Procedure indicates: “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”.

Prior to the enactment of this rule, the court had inherent jurisdiction to order bifurcation in non-jury trials in exceptional cases where it was in the interest of justice to do so. There was no such right in jury trials.

The majority of the Divisional Court stated that, to oust the pre-existing and inherent jurisdiction of the court to order bifurcation in non-jury trials, clear and precise statutory language is required.

The majority stated that rule 6.1.01 does not contain clear wording to prohibit the court from bifurcating a non-jury trial.

The majority concluded that, in exceptional cases, the court should not be restricted from exercising its inherent jurisdiction to bifurcate a non-jury case when a party refuses to consent.

This was contrary to the comments of the majority of the Divisional Court in a previous decision.

Regional Senior Justice Ellies dissented. He indicated that the language of rule 6.1.01 is clear and unambiguous. He stated that the purpose of introducing rule 6.1.01 was to restrict the power of the court to bifurcate non-jury trials without consent.