The New Rule for Bifurcation

August 07, 2024

The new Rule 6.1.01(1) of the Ontario Rules of Civil Procedure came into effect on July 1, 2024.

This new Rule was considered in LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040. The action involved personal injuries suffered by Hudson LaPointe while playing in a school softball tournament.

The Court dismissed the defendant’s motion for bifurcation of trial on the issues of liability and damages. This decision is notable for the Court’s interpretation of the new Rule. Despite the changes to Rule 6.1, it appears at least from this decision that bifurcation of jury trials may remain uncommon.

The former Rule (enacted in 2010)

6.1.01 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.

The new Rule

6.1.01(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.
(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 rising 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.

Analysis

Prior to the 2010 Rule, the courts had inherent power to bifurcate non-jury trials, but not jury trials.

When the 2010 Rule was enacted, courts were granted an express statutory power to bifurcate trials. However, this version of the Rule was interpreted to mean that courts could only bifurcate trials (both jury and non-jury) on consent of the parties. Whether courts retained their inherent power to bifurcate with respect to non-jury trials was debated.

The Court went through the factors set out in subrule (2) of the new Rule in considering whether to order bifurcation.

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

On the first factor, the Court agreed with plaintiff’s counsel that the use of the word “will” meant that the party moving for bifurcation had to present decisive evidence showing that the separate hearing would dispose of some or all of the issues, shorten or simplify the rest of the proceeding, or result in a substantial savings of costs. The Court found that the defendant had not provided any such decisive evidence.

The Court noted that while a separate liability trial could always end the case and shorten trial time, separation would not automatically translate into shortening of the proceeding overall or result in cost savings. As a jury notice had been served, the Court had concerns with respect to splitting the trial, as raised by the Court of Appeal in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126 (“Kovach”), such as multiple appeals in the same action, which would in turn, result in delays and more costs. Again, the Court emphasized that there would only be substantial cost savings if there was no appeal.

b) Whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact

Again, the Court agreed with plaintiff’s counsel that the word “clearly” created a high standard. Issues should not be separated when they cannot be truly compartmentalized, such as where there will be an overlap in witnesses or evidence on the issues or where causation touches on both liability and damages.

The Court noted that it may be quite difficult for a motions judge to feel satisfied that the issues are clearly severable or that there is no risk of inconsistent findings between juries, as a motions judge may not have a full appreciation for the case.

In this case, the plaintiffs had put forth evidence that they intended to have their expert testify on damages and liability, as well as that the anticipated evidence from lay witnesses would be relevant to both liability and damages. Thus, the Court found this factor weighed against bifurcation.

c) Whether ordering a separate hearing would unduly prejudice or advantage a party, including the impact on any counterclaim, cross claim 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

The Court noted that the wording of this subsection of the new Rule contemplated the ordering of separate trials in cases where a jury notice had been served.

Nevertheless, the Court found the new Rule difficult to reconcile with the pre-2010 common law, which did not allow courts to bifurcate jury trials. The Court found the new Rule unclear as to whether courts could bifurcate cases, with no consent, where a jury notice had been served, and suggested that this issue should be clarified by a higher court. The Court found that the new Rule did not eliminate or ameliorate the prejudice inherent in bifurcating issues in jury trials, as articulated in the case law like Kovach, such as the possibility of inconsistent findings if different juries were to decide the split issues.

On the facts, the Court found that the delivery of a jury notice weighed against bifurcation of the issues. The plaintiffs would be prejudiced by a) being denied the opportunity for the same jury to make a credibility assessment of the main plaintiff on the whole of the evidence, b) facing the cost of preparing witnesses twice, and c) the potential for an appeal on liability resulting in delay in the damages trial.

d) The impact of ordering a separate hearing at the applicable stage in the proceeding

While the motion was filed and returned at the first possible date after the new Rule came into effect, the trial on both issues was scheduled for a mere months after the motion, for September of 2024. The Court accepted the plaintiffs’ evidence that their trial preparation had already begun.

e) Any other relevant matter

The Court took into consideration that the subject incident had occurred over six years ago. Further delay resulting from bifurcation would potentially have an effect on witnesses’ memories of the events and not serve the primary truth-seeking function of a trial.

Ultimately, the Court did not order the bifurcation of the trial on the issues of liability and damages.

Takeaway

By removing the consent requirement, the wording of the new Rule appears to have intended to make bifurcation of trials more accessible, with the goal of shortening trials and reducing the backlog of court resources. However, this decision suggests that successfully obtaining a bifurcation order may remain difficult in jury trials.