Fridays with Rogers Partners

At our weekly meeting, Sarah Sevier discussed the recent decision of the Ontario Superior Court of Justice in Wheelans v. Kuss, 2024 ONSC 6728, dismissing a motion for bifurcation pursuant to Rule 6.1.01 of the Rules of Civil Procedure.

The Court concluded that the potential cost savings and efficiencies of separate hearings for liability and damages were outweighed by the delay and the risk of increased costs. Critically, the court noted that the moving party had waited too long to bring the bifurcation motion, stating that efforts to shorten a trial and facilitate case settlements must begin as early as possible.

PROCEDURAL HISTORY

• In July 2016, the plaintiff, Ronald Wheelans, was injured in a motor vehicle accident.
• In November 2017, Mr. Wheelans filed a lawsuit against the other drivers and vehicle owners involved in the accident.
• In November 2018, Mr. Wheelans was involved in another accident and filed a second lawsuit. The court ordered that both cases be heard together, with the trial scheduled for January 2025.
• In August 2024, the defendants requested that the parties agree to separate hearings on the issues of liability and damages. The plaintiffs refused, arguing that this would result in unnecessary delays.
• A pre-trial conference was held on October 8, 2024, after which there was disagreement between the parties regarding whether a bifurcation motion had been raised.
• On October 29, 2024, the companion action was settled.
• In mid-November 2024, the defendants filed an urgent motion requesting an order for separate hearings on damages and liability.

ISSUE

Whether bifurcating the trial into separate hearings for liability and damages was appropriate pursuant to Rule 6.01.1.

LEGISLATION

Rule 6.1.01 was amended in July 2024, and currently reads as follows:

(1) 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,
a. on a party’s motion, with or without the consent of the other parties; or
b. at a conference under Rule 50, with the consent of the parties. O. Reg. 175/24, s. 1.
(2) In determining whether to order a separate hearing, the court shall consider,
a. whether ordering a separate hearing will dispose of some or all of the issues, shorten or simplify the rest of the proceeding or result in a substantial saving of costs;
b. whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact;
c. whether ordering a separate hearing would unduly prejudice or advantage a party, including the impact on any counterclaim, crossclaim or third or subsequent party claim or, in cases where a jury notice has been delivered, on a party’s election to have the action heard by a jury;
d. the impact of ordering a separate hearing at the applicable stage in the proceeding; and
e. any other relevant matter. O. Reg. 175/24, s. 1.

The previous Rule 6.01.1 limited bifurcation to scenarios where the parties consented.

In this case, the court observed that Rule 6.01.1 may have been amended in response to the increased backlog of cases resulting from the COVID-19 pandemic and is likely intended to expedite trials and encourage settlements.

LAW & ANALYSIS

The only case published to date applying the amended Rule 6.01.1 is LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040. See our previous blog post on this case here.

The Court noted that the defendants raised several arguments previously rejected by Justice Healy in LaPointe. However, the Court identified key differences in this case that distinguished it from LaPointe.

Will separate hearings shorten the proceeding or save costs?

Following the pre-trial conference, the trial was estimated to last 25 days before a jury. The parties agreed that if the liability issue were litigated first, it would take only 3 to 4 days. Accordingly, the defendants suggests that separate hearings could shorten the proceedings.

However, the Court observed that separate hearings would only shorten the trial and save costs if the defendants were successful on the liability issue and no appeal was filed. Otherwise, separate hearings could delay the proceedings.

In assessing the case at hand, the Court noted that if the defendants were found liable, a separate damages hearing would be required, likely not occurring during the January 2025 trial sittings. Additionally, given that an appeal typically covers both liability and damages, further delays could arise if the defendants are unsuccessful at the liability phase.

Can the issues be heard separately without repeating the evidence or risking inconsistent findings of fact?

The Court agreed with the defendants that liability and damages could be separated in this case. Unlike LaPointe, where Justice Healy found that assessing the standard of care required considering both liability and damages, the parties here planned to call distinct fact and expert witnesses for each issue. No overlap was identified.

However, the court pointed out that the defendants made a technical error in relying on their own discovery evidence to suggest that liability could not be established, which violated Rule 39.04. Additionally, the Court found the argument that liability would be easily proven against the plaintiff irrelevant, suggesting that if the defendants believed there was no genuine issue of liability, they should have moved for summary judgment instead of proceeding to trial.

Do separate hearings unduly prejudice any party?

In LaPointe, Justice Healy noted that delivering a jury notice militates against separating the issues, as it’s unlikely the same jury will decide both issues, leading to inconsistent verdicts. The Court in this case observed that such concerns typically only arise when the issues are not clearly severable. Where the issues are clearly severable, as in this case, there is no barrier to different juries deciding different issues.

Notably, the defendants distinguished LaPointe by arguing that they had delivered the jury notice and were willing to accept any prejudice from bifurcation. The Court accepted this position, concluding there was no undue prejudice or unfair advantage.

What is the effect of ordering a separate hearing at this stage?

With trial sittings scheduled for January 2025 and the accident occurring over 8 years ago, the Court expressed concern that granting bifurcation could delay the damages hearing until January 2027. Accordingly, the Court found that this potential two-year delay was prejudicial to the plaintiff, even if the defendants succeeded in the liability phase.

Is the timing of the defendants’ request a relevant matter?

The defendants argued that their request for bifurcation only became feasible after the July 2024 amendment of Rule 6.01.1 and the late October 2024 settlement of a companion action. However, the Court rejected this argument.

First, there was no evidence the defendant’s considered bifurcation before August 2024. The Court stated that even under the old rule, the defendants could have sought the plaintiff’s consent to separate the trial but failed to do so. Further, the bar had notice of the rule change well before July 2024, and the defendants could have filed their motion before the amendment, as they did in LaPointe.

Second, the court found no justification for the defendants’ reliance on the settlement of the companion action, which they argued complicated the bifurcation request.

Finally, the issue of bifurcation was not fully addressed at the pre-trial conference, where the parties confirmed their readiness for a 25-day trial covering both liability and damages. In doing this, the defendants effectively indicated they were prepared, and the plaintiffs had a right to rely on that representation.

CONCLUSION & TAKEAWAYS

Although liability and damages were clearly severable in this case, the Court ultimately determined that the timing of the bifurcation request was detrimental. The Court emphasized:

“This rule has to be invoked long before the pre-trial conference. That event is the beginning of the end of an action. Requesting bifurcation after the pre-trial conference suggests that the parties are only at the end of the beginning. If the culture of complacency that threatens to break our civil justice system is finally to be smashed, parties have to shorten trials and settle cases from the earliest moment possible.”

The decision highlights the Court’s reluctance to grant bifurcation motions perceived as untimely, especially when they may lead to delays and increased costs. Litigants are reminded to consider procedural strategies early and be proactive in managing trial efficiency. The Court’s decision also reflects a broader intent to address case backlogs and expedite dispute resolution, a concern exacerbated in the post-pandemic legal landscape.