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CIVIL PROCEDURE - Trials - Severance of issues or parties

Friday, February 12, 2021 @ 6:16 AM  


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Appeal by the plaintiffs from an order bifurcating the issues of damages and liability. The underlying action sought damages for personal injuries suffered by an infant plaintiff in a fall from an apartment balcony. Neither side served a jury notice. The plaintiffs sought an adjournment of trial pending stabilization of the minor plaintiff’s injuries. A master granted the plaintiffs’ request but limited the adjournment to the damages trial and granted the defendants’ request to bifurcate the issues of damages and liability. The plaintiffs appealed on the basis that Rule 6.1.01 precluded a bifurcation order without their consent. The Divisional Court found that Rule 6.1.01 contemplated consent solely in instances of bifurcation of a jury trial. In the instance of a trial by judge alone, the court retained inherent jurisdiction to bifurcate without the consent of the parties. The plaintiffs appealed.

HELD: Appeal allowed. Nothing in the wording of Rule 6.1.01 suggested any distinction between jury and non-jury cases. To the contrary, the Rule applied to a “proceeding” and, on its face, thus applied to all types of proceedings. Placed in the context of the previous state of the law, the Rule’s requirement for the parties’ consent before bifurcation may be ordered confirmed the court’s power in jury cases, but it circumscribed the court’s inherent jurisdiction in non-jury cases. The Divisional Court erred in law in finding that the language of the Rule did not oust the inherent jurisdiction of the court. By making consent a precondition of the exercise of the court’s discretion, the drafters of the Rule used clear and precise language that limited the court’s authority under the rule to consensual orders. To interpret it otherwise would undermine the unequivocal wording and meaning of the Rule. The master and appeal courts further erred in treating jurisprudence interpreting Rule 6.1.01 as obiter rather than applying it pursuant to the doctrine of stare decisis. The decisions below and the bifurcation order were set aside.

Duggan (Litigation guardian of) v. Durham Region Non-Profit Housing Corp., [2020] O.J. No. 5493, Ontario Court of Appeal, K.N. Feldman, J.M. Fairburn and I.V.B. Nordheimer JJ.A., December 15, 2020. Digest No. TLD-February82021009