COURT FILE NO.: 440/04

DATE: 20050310

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: ASHLEY MARIE CARREIRO, a Minor by the Litigation Guardian NANCY CABRAL, et al, Plaintiffs (Respondents)

v.

STACY A. FLYNN and NEWCOURT FINANCIAL LIMITED, Defendants (Appellants)

BEFORE: LANE, HOWDEN and MOLLOY JJ.

COUNSEL: James F. Flaherty and Stephanie Zwickerslavens, for the (Appellants (Defendants)

Barry Chobotar, for the Plaintiffs

HEARD: March 7, 2005

E N D O R S E M E N T

MOLLOY J:

[1] The minor plaintiff Ashley Carreiro sustained serious injuries on April 27, 1998 when she was struck by a car. She was six years old at the time and had been playing in the driveway of her parents’ home in Toronto. She apparently ran onto the road and was struck by a car driven by the defendant Stacy Flynn. Ms Flynn denies any liability and alleges that Ashley ran onto the road from between parked cars, making the collision unavoidable. The defendants have also counterclaimed against Ashley’s parents for contribution and indemnity alleging negligence in failing to properly instruct or supervise Ashley.

[2] Both the plaintiffs and defendants served jury notices.

[3] The defendants moved for an order to bifurcate the trial, such that the issues of liability would proceed first and after that, a trial on the damages issue. Mr. Flaherty, on behalf of the defendants, estimates the trial on liability would take three or four days. The parties agree that the damages portion of the trial will be complex. There was a head injury and cognitive deficits. Ashley’s condition has been declared to be catastrophic for the purposes of her accident benefits claim. Mr. Flaherty estimates the trial on damages would likely require at least three weeks. Mr. Flaherty acknowledges that, given the length of the damages trial and the nature of the trial lists in Toronto, bifurcation of this trial would mean that if the case did not settle it would be tried by two separate juries, one jury for the liability issues and a second jury some time later for the damages issues.

[4] The defendants’ motion was heard by Sutherland J. and dismissed by him with reasons provided in a written endorsement released on July 21, 2004. Sutherland J. held that: (1) he was bound by authorities from the Divisional Court and the Court of Appeal, the combined effect of which was to make bifurcation unavailable for jury trials; and (2) even if he had a discretion to exercise, this was not an appropriate case to split the issues of liability and damages.

[5] I will deal with the second point first. Sutherland J. held that if he was not bound by precedent to dismiss the motion because bifurcation was not available in a jury trial, he was nevertheless of the view that the motion must fail because he did not see this case as an appropriate one in which to split the issues of liability and damages. His analysis in that regard is thoughtful and well reasoned. He examined the relevant criteria identified in previous case law, holding (quite correctly) at paragraph 12 of his Endorsement that the court’s discretion in considering the relevant factors “should not be cabined and confined to the consideration of only a pre-set list of factors or criteria.” He then identified some additional criteria which were both relevant and reasonable to have taken into account and he considered the weight to be given to all of these factors. He held (at paragraph 21) that the defendants had not met the onus, established in Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 35 O.R. (2d) 56 (C.A.), of demonstrating that this case is one of the “clearest of cases” or “so exceptional as to merit the exercise the court’s inherent right to bifurcate”.

[6] The findings of Sutherland J. in this regard were based on an accurate understanding and application of law and reasonable inferences drawn from the facts. Further, this was clearly an exercise of discretion and one to which considerable deference is therefore due. There is no basis to interfere with his decision: Algoma Steel Inc. v. Union Gas Ltd. (2003), 63 O.R. (3d) 78 (C.A.); Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th 577 (S.C.C.).

[7] In any event, I agree entirely with the decision of Sutherland J. that this is not an appropriate case in which to order separate trials for liability and damages. Obviously, every case before the courts is different and much will turn on the particular facts of each case. That said, there is nothing particularly exceptional about this case when it is compared to the vast array of serious or catastrophic personal injury cases in which both liability and damages are disputed. If the circumstances of this case warrant a split trial of liability and damages before two different juries, there will not be many serious injury jury trials that would not fall into the same category. There is a presumption that a plaintiff is entitled to have all of her claims decided in one trial. Multiplicity of proceedings is to be discouraged. A relaxation of the criteria entitling a party to a bifurcated trial over the objection of other parties to the extent advocated by the defendants here is, quite simply, contrary to existing precedent and not desirable from a fairness or policy standpoint.

[8] The liability issues in this case are not simple. The main plaintiff was only six years old at the time the accident occurred. There are reverse onus issues because she was a pedestrian. There are also additional liability issues involving her parents, the extent of their duty and whether they were negligent. The credibility of the parents may be an issue in the determination of liability. The extent of the damages, if any, to which Ashley may be entitled will not be based solely on expert testimony. It will be affected by factors such as her day-to-day condition, her usual level of functioning and the extent to which she requires special assistance for education or daily needs. Typically, the testimony of parents is a key element in establishing the level of care needed for a minor plaintiff. Therefore, the credibility of Ashley’s parents might well be involved in the trial on liability as well. This makes it more advisable to have the same trier of fact hear both aspects of the case. The damages trial may also need to include at least some evidence as to the circumstances in which the injuries were sustained. Thus, although I agree with Sutherland J’s observation that there is “little in the way of evidentiary overlap” between the issues of liability in damages, the issues are not completely separate.

[9] Finally, unless the finding on liability is that the defendant is not even 1% responsible for the plaintiff’s injuries, it is by no means clear that bifurcating this trial will result in any savings of time or expense for the parties. Counsel for the defendants submits that the whole action is “likely” to settle once liability is resolved. That is purely speculative. If liability issues are truly not contentious, there is no reason not to resolve the global damage award in advance, with the apportionment of any responsibility for those damages to then be resolved by a trial of the liability issue. There is no evidence indicating any present reason this cannot be done. That is not meant to be a criticism, but merely an observation that there is no particular reason to conclude that settlement of damages is “likely” to result from splitting the trial. It is always more time consuming to do two trials rather than one; and, in this case, since all the same parties will be involved, it will inevitably be more expensive for everybody to do two trials rather than one. Experienced counsel for the plaintiff, aware of the expense of litigating both issues together and cognizant of the costs savings if an early settlement could be reached, asserts the basic right of the plaintiffs to have all the issues dealt with in a single trial. I agree with Sutherland J. that this is a “significant factor in favour of a refusal to bifurcate the trial”.

[10] With respect to the first issue, counsel for the defendants urges this Court to revisit the issue of bifurcation of trials in jury cases and, in effect, to develop new law removing the absolute prohibition of such an order in cases to be tried by a jury. I am not persuaded that this is an appropriate case in which to do so. I note the comments of Sutherland J. (at paragraphs 10 and 15-18) as to the way this principle has developed in the case law. The Court of Appeal decision in Elcano, supra, is recognized as the leading authority on the court’s inherent jurisdiction to split a trial. The case before the Court in Elcano was not a jury trial. However, Morden J.A. in the course of summarizing the law in this area, referred to a Divisional Court decision in Shepley v. Libby McNeil & Libby of Canada Ltd. (1979), 23 O.R. (2d) 354, 9 C.P.C. 201 as having held that the power to split a trial “may not be exercised where one of the parties has served a jury notice.” Thus, the Court of Appeal pronouncement on this point was not a clear indication that the reasoning of the Divisional Court was adopted and, in any event, was obiter. Further, as was pointed out by Sutherland J., reasonable minds may differ as to whether the Divisional Court in Shepley went so far as to say that a trial could never be split if it was to be tried by a jury.

[11] If those were the only decisions on the point, it might be said there was no binding precedent on the issue. However, the subsequent decision of the Divisional Court in Duffy v. Gillespie (1997), 36 O.R. (3d) 443 is clearer on the point. The Court in that case specifically rejected the possibility of a split trial based on the fact that a jury notice had been served. The Court of Appeal decision in Elcano and the earlier Divisional Court decision in Shepley are cited as authority for that proposition. Sutherland J. quite correctly held he was bound to follow Duffy v. Gillespie.

[12] It may be the case that there are some trials that might appropriately be split, even where the result would be to have two different juries trying separate issues in the case. This is not such a case, for the reasons already expressed by Sutherland J. It is not advisable to develop “new law” in a factual vacuum. If the current state of the law as stated in Duffy v. Gillespie needs to evolve to meet the realities of modern trial length and complexities, it should only be in the context of a factual situation which illustrates the need for such a change. I do not see that need in this case.

[13] In the result the appeal is dismissed. The appellants are entitled to their costs, fixed at $4295.00 for the leave motion and the appeal, payable forthwith.

MOLLOY J.

I agree:___________________________

LANE J.

I agree:___________________________

HOWDEN J.

Released: March 10, 2005