Bondy-Rafael et al. v. Potrebic et al.

[Indexed as: Bondy-Rafael v. Potrebic]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

R.D. Gordon, Molloy and Corbett JJ.

December 3, 2015

128 O.R. (3d) 767 | 2015 ONSC 3655

Case Summary

Civil procedure — Trial — Bifurcation — Motion judge not having jurisdiction to order bifurcation of trial without consent of all parties — Rule 6.1.01 of Rules of Civil Procedure occupying field and ousting inherent jurisdiction of court to bifurcate trial over objection of party — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 6.1.01.

Over the plaintiffs' objection, the motion judge directed that the trial of the action be bifurcated, with the trial of liability to proceed first and the trial of damages to proceed at a later, unspecified date. The plaintiffs appealed.

Held, the appeal should be allowed.

Per Molloy J. (R.D. Gordon J. concurring): Rule 6.1.01 of the Rules of Civil Procedure, which provides that a court may make a bifurcation order with the consent of the parties, has occupied the field and ousts the inherent jurisdiction of the court to bifurcate a trial over the objection of a party. The motion judge did not have jurisdiction to make the bifurcation order.

Per Corbett J. (concurring in the result): Rule 6.1.01 should be read not as a substantial derogation of the court's inherent jurisdiction to control its own process, but as a slight expansion of it. The motion judge had the jurisdiction to order separate trials of the issues of liability and damages, but should not have done so on the circumstances of this case.

Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 164 (SCC), [1976] 2 S.C.R. 475, [1975] S.C.J. No. 84, 57 D.L.R. (3d) 1, 5 N.R. 515, [1976] 1 W.W.R. 1, 20 C.B.R. (N.S.) 240; Dickson v. Di Michele, [2014] O.J. No. 1925, 2014 ONSC 2513 (S.C.J.); Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 2591 (ON CA), 55 O.R. (2d) 56, [1986] O.J. No. 578, 16 O.A.C. 69, 9 C.P.C. (2d) 260, 38 A.C.W.S. (2d) 163 (C.A.); Kovach (Litigation Guardian of) v. Kovach (2010), 100 O.R. (3d) 608, [2010] O.J. No. 643, 2010 ONCA 126, 80 C.P.C. (6th) 40, 92 M.V.R. (5th) 39, 261 O.A.C. 190, 316 D.L.R. (4th) 341, 186 A.C.W.S. (3d) 71; MTCC No. 831 v. Khan, [2012] O.J. No. 4124, 2012 ONSC 5037 (S.C.J., Comm. List); Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988), 1988 4745 (ON CA), 65 O.R. (2d) 433, [1988] O.J. No. 1223, 29 O.A.C. 357, 28 C.P.C. (2d) 231, 11 A.C.W.S. (3d) 116 (C.A.); Trinity Anglican Church v. Janeiro, [2012] O.J. No. 3791 (S.C.J.); Waxman v. Waxman, [2011] O.J. No. 3780, 2011 ONSC 4707, 206 A.C.W.S. (3d) 468 (S.C.J.); Wm. Whiteley Ltd. v. Gauthier, [2010] O.J. No. 149, 2010 ONSC 396, 86 C.P.C. (6th) 343, 184 A.C.W.S. (3d) 58 (S.C.J.), consd [page768]

Soulliere (Litigation guardian of) v. Robitaille Estate (2013), 117 O.R. (3d) 95, [2013] O.J. No. 3631, 2013 ONSC 5073, 54 C.P.C. (7th) 403, 230 A.C.W.S. (3d) 704 (S.C.J.), not folld

Other cases referred to

2313103 Ontario Inc. v. JM Food Services Ltd., [2015] O.J. No. 3239, 2015 ONSC 4029 (S.C.J.); Balsmeier v. Balsmeier, [2014] O.J. No. 5115, 50 R.F.L. (7th) 390, 2014 ONSC 5305 (S.C.J.); Baudanza v. Nicoletti, [2011] O.J. No. 457, 2011 ONSC 352, 11 R.F.L. (7th) 329, 198 A.C.W.S. (3d) 179 (S.C.J.); Barsheshet v. Aviva Canada Inc., [2015] O.J. No. 3629, 2015 ONSC 4439, [2015] I.L.R. I-5766 (S.C.J.); Bayer Inc. v. Belfield Investment Corp., [2015] O.J. No. 4238, 2015 ONSC 5029 (S.C.J.); Beatty v. Best Theratronics Ltd., [2014] O.J. No. 2991, 2014 ONSC 3376, 18 C.C.E.L. (4th) 64, 241 A.C.W.S. (3d) 374 (S.C.J.); Bourne v. Saunby, [1993] O.J. No. 2606, 23 C.P.C. (3d) 333, 49 M.V.R. (2d) 65, 43 A.C.W.S. (3d) 724 (Gen. Div.); Brown v. Belair, [2015] O.J. No. 3537, 2015 ONSC 4231, [2015] I.L.R. I-5763 (S.C.J.); Business Development Insurance Ltd. v. Caledon Mayfield Estates Inc., [2015] O.J. No. 1527, 2015 ONSC 1978, 54 R.P.R. (5th) 300, 253 A.C.W.S. (3d) 489 (S.C.J.); Canada Mortgage and Housing Corp. v. Greenspoon, [2015] O.J. No. 5831, 2015 ONSC 6882 (S.C.J.); Central Sun Mining v. Vector Engineering Inc. (2015), 23 C.P.C. (3d) 629 (Ont. S.C.J.); Cloutier v. Q Residential LP Corp., [2015] O.J. No. 5601, 2015 ONSC 4431, 27 C.C.E.L. (4th) 147, 259 A.C.W.S. (3d) 697 (S.C.J.); Cross Bridges Inc. v. Z-Teca Foods Inc., [2015] O.J. No. 2022, 2015 ONSC 2632 (S.C.J.); Dillon v. Dillon, [2013] O.J. No. 5744, 2013 ONSC 7679 (S.C.J.); Duffy v. Gillespie (1997), 1997 16236 (ON SC), 36 O.R. (3d) 443, [1997] O.J. No. 5008, 155 D.L.R. (4th) 461, 105 O.A.C. 283, 17 C.P.C. (4th) 91, 76 A.C.W.S. (3d) 46 (Div. Ct.); EFI Technologies Inc. v. Silani Sweet Cheese Ltd., [2015] O.J. No. 1222, 2015 ONSC 789 (S.C.J.); Empire Communities Ltd. v. Ontario, [2015] O.J. No. 3574, 2015 ONSC 4355, 57 R.P.R. (5th) 78, 256 A.C.W.S. (3d) 974 (S.C.J.); EnerWorks Inc. v. Glenbarra Energy Solutions Inc., [2012] O.J. No. 2272, 2012 ONSC 414 (S.C.J.); F. v. Greater Sudbury (City) Police Service, [2015] O.J. No. 3797, 2015 ONSC 3937 (S.C.J.); Fehr v. Sun Life Assurance Co. of Canada, [2015] O.J. No. 5891, 2015 ONSC 6931 (S.C.J.); Fernandes v. Araujo (2014), 123 O.R. (3d) 294, [2014] O.J. No. 5248, 2014 ONSC 6432, [2015] I.L.R. I-5668, 41 C.C.L.I. (5th) 222, 247 A.C.W.S. (3d) 929 (S.C.J.); France v. Kumon Canada Inc., [2014] O.J. No. 5795, 2014 ONSC 5890, 35 B.L.R. (5th) 286, 247 A.C.W.S. (3d) 564 (S.C.J.); G. (C.M.) v. G. (R.), [2013] O.J. No. 589, 2013 ONSC 961, 48 R.F.L. (7th) 422, 2013 CarswellOnt 1461, 225 A.C.W.S. (3d) 769 (S.C.J.); Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629, [2004] S.C.J. No. 21, 2004 SCC 25, 237 D.L.R. (4th) 385, 319 N.R. 38, J.E. 2004-931, 186 O.A.C. 128, 43 B.L.R. (3d) 163, 9 E.T.R. (3d) 163, 130 A.C.W.S. (3d) 32; Gauthier v. Lahey, [2015] O.J. No. 3896, 2015 ONSC 4696, 12 E.T.R. (4th) 220, 257 A.C.W.S. (3d) 894 (S.C.J.); Grossman v. Grossman, [2014] O.J. No. 6450, 2014 ONSC 2090, 55 R.F.L. (7th) 207, 249 A.C.W.S. (3d) 610 (S.C.J.); Guertin v. Legault, [2015] O.J. No. 1181, 2015 ONSC 1391 (S.C.J.); Hall v. Sabri, [2011] O.J. No. 4850, 2011 ONSC 6342, 11 R.F.L. (7th) 395, 208 A.C.W.S. (3d) 737 (S.C.J.); Hamilton (City) v. Canada (Attorney General), [2015] O.J. No. 852, 2015 ONSC 1043, 34 M.P.L.R. (5th) 333, 250 A.C.W.S. (3d) 411 (S.C.J.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162; Jeliazov v. John Doe, [2015] O.J. No. 4988, 2015 ONSC 5856, [2015] I.L.R. I-5810 (S.C.J.); Johnson v. Johnson, 1986 6256 (ON SC), [1986] O.J. No. 2506, 8 C.P.C. (2d) 243, 50 R.F.L. (2d) 167, 35 A.C.W.S. (2d) 144 (H.C.J.); [page769] Karbasion v. Batorowicz, [2015] O.J. No. 5446, 2015 ONSC 6502 (S.C.J.); Klasios v. Klasios, 2015 ONSC 1173 (S.C.J.); Landrie v. Congregation of the Most Holy Redeemer (2014), 120 O.R. (3d) 768, [2014] O.J. No. 3132, 2014 ONSC 4008 (S.C.J.); Loreto v. Romano, [2015] O.J. No. 799, 2015 ONSC 898 (S.C.J.); Mantella v. Mantella (2006), 2006 10526 (ON SC), 80 O.R. (3d) 270, [2006] O.J. No. 1337, 267 D.L.R. (4th) 532, 27 R.F.L. (6th) 57, [2006] O.T.C. 322, 147 A.C.W.S. (3d) 136 (S.C.J.); Martin v. Attard Plumbing Ltd., [2015] O.J. No. 4250, 2015 ONSC 5037 (S.C.J.); Marton v. Marton, [1988] O.J. No. 1358 (H.C.J.); Miaskowski v. Persaud, [2015] O.J. No. 1208, 2015 ONSC 1654 (S.C.J.); Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd., 1971 960 (MB CA), [1971] M.J. No. 38, 21 D.L.R. (3d) 75, [1971] 4 W.W.R. 542 (C.A.); MSI Spergel Inc. v. X-Act Systems Inc., [2015] O.J. No. 2929, 2015 ONSC 3692 (S.C.J.); Munas v. Yusuf (2015), 127 O.R. (3d) 457, [2015] O.J. No. 4725, 2015 ONSC 5443, 87 M.V.R. (6th) 164, 257 A.C.W.S. (3d) 948 (S.C.J.); Nemeth v. Yasin, [2015] O.J. No. 347, 2015 ONSC 558, 44 C.C.L.I. (5th) 293, 73 M.V.R. (6th) 320, [2015] I.L.R. I-5688, 249 A.C.W.S. (3d) 340 (S.C.J.); Nguyen v. SSQ Life Insurance Co., [2014] O.J. No. 5253, 2014 ONSC 6405, 41 C.C.L.I. (5th) 246, 246 A.C.W.S. (3d) 447 (S.C.J.); Ormerod v. Strathroy Middlesex General Hospital, [2013] O.J. No. 1048, 2013 ONSC 1499, 42 C.P.C. (7th) 284, 226 A.C.W.S. (3d) 1006 (S.C.J.); R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 166 D.L.R. (4th) 385, 232 N.R. 83, 115 O.A.C. 201, 129 C.C.C. (3d) 449, 20 C.R. (5th) 246, 57 C.R.R. (2d) 219, 40 W.C.B. (2d) 192; R & G Draper Farms (Keswick) Ltd. v. Nature's Finest Produce Ltd., [2015] O.J. No. 3844, 2015 ONSC 4620 (S.C.J.); Rahimi v. Hatami, [2015] O.J. No. 3479, 2015 ONSC 4266 (S.C.J.); Schulman v. Ganz, [2015] O.J. No. 2665, 2015 ONSC 3254, 61 R.F.L. (7th) 118, 254 A.C.W.S. (3d) 632 (S.C.J.); Simioni v. Simioni, 2009 934 (ON SC), [2009] O.J. No. 174, 74 R.F.L. (6th) 202 (S.C.J.); Sutton v. Balinsky, [2015] O.J. No. 3935, 2015 ONSC 3081 (S.C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 5815, 2014 ONCA 878, affg [2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.) [Leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 97, 2015 39803]; Tetreault v. Nussbaum, [2015] O.J. No. 5221, 2015 ONSC 6226 (S.C.J.); Toronto-Dominion Bank v. Jolly, [2015] O.J. No. 4914, 2015 ONSC 5886 (S.C.J.); Unwin v. Crothers (2005), 76 O.R. (3d) 453, [2005] O.J. No. 2797 (S.C.J.), [2005] O.T.C. 571, 17 C.P.C. (6th) 128, 2005 23337, 140 A.C.W.S. (3d) 421, 2005 CarswellOnt 2811; Vachon v. 1307839 Ontario Ltd., [2013] O.J. No. 5761, 2013 ONSC 7180 (S.C.J.); Vynckier v. Brown, [2015] O.J. No. 4520, 2015 ONSC 376 (S.C.J.); Wang v. Byford-Harvey (2012), 110 O.R. (3d) 703, [2012] O.J. No. 2281, 2012 ONSC 3030, 25 C.P.C. (7th) 299 (S.C.J.); Woodbury v. Woodbury, [2012] O.J. No. 3938, 2012 ONSC 4817 (S.C.J., Ellies J.); Woodbury v. Woodbury, [2013] O.J. No. 5754, 2013 ONSC 7736 (S.C.J., Master Muir); Woodbury v. Woodbury, [2014] O.J. No. 2495, 2014 ONSC 3149 (S.C.J., E.M. Morgan J.); Ziebenhaus (Litigation guardian of) v. Bahlieda (2015), 126 O.R. (3d) 541, [2015] O.J. No. 3318, 2015 ONCA 471, 386 D.L.R. (4th) 156, 336 O.A.C. 135, 254 A.C.W.S. (3d) 309, affg (2014), 119 O.R. (3d) 275, [2014] O.J. No. 1583, 2014 ONSC 138, 52 C.P.C. (7th) 312, 319 O.A.C. 111, 239 A.C.W.S. (3d) 58 (Div. Ct.), affg [2012] O.J. No. 3542, 2012 ONSC 3787, 41 C.P.C. (7th) 183, 218 A.C.W.S. (3d) 43 (S.C.J.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 105 [as am.], 108(1) [as am.]

Family Law Act, R.S.O. 1990, c. F.3 [as am.]

Rules and regulations referred to

Family Law Rules, O. Reg. 114/99 [as am.], rules 12(5), (6)

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04 [as am.], (2), 2.03, 6.1, 6.1.01, 31.10, 77.01(1), 77.04(2), 77.02 [page770]

Authorities referred to

Osborne, Coulter A., Civil Justice Reform Project — Summary of Findings & Recommendations (Toronto: Ministry of the Attorney General, 2007)

APPEAL from an order bifurcating a trial.

Alan Rachlin, for appellants.

Sheldon Gilbert, for respondents Soka and Dane Potrebic.

Evelyn ten Cate, for all other respondents other than the City of Windsor.

MOLLOY J. and R.D. GORDON R.S.J.: —

Introduction

[1] This is an appeal from a decision of Gates J. dated July 24, 2014, in which he directed that the trial in this action be bifurcated, with the trial of liability to proceed on September 8, 2014 and the trial of damages to proceed at a later, unspecified date. The motion judge also made orders with respect to further discovery and medical assessments relevant to the damages issue.

[2] The bifurcation order is interlocutory, such that an appeal lies to the Divisional Court, but only with leave. Leave to appeal was granted by Patterson J. on August 22, 2014 on the sole issue of the bifurcation of liability and damages.

[3] Although a number of grounds for appeal are raised by the appellants, the central issue is whether the motion judge had any power to order bifurcation without the consent of all parties. In my view, the wording of the applicable rule is clear and the motion judge had no power to make the order he did over the objection of the plaintiffs. As a result, the order under appeal cannot stand. It is therefore unnecessary to deal with any of the other issues advanced. My detailed reasons for this conclusion are set out below.

Background

[4] This action involves a tragic motor vehicle accident in which two children (Krystal and Tanner) sustained catastrophic injuries. The accident occurred on May 4, 2004 at the Lauzon Plaza, a strip mall shopping plaza located on Lauzon Road in Windsor, Ontario. That afternoon, Krystal had finished working at her part-time job and had picked up her younger brother Tanner from his day care centre located in the plaza. Krystal was 17 years old and Tanner was three years old. They purchased [page771] a treat from a convenience store in the plaza and sat outside on the edge of two raised rock garden planters to wait for their mother, who was going to pick them up. While they were sitting there, the defendant Soka Potrebic was driving her SUV in the parking lot, intending to pull into a parking spot. She lost control of her vehicle, accelerated forward onto the sidewalk, climbed over the two planters and struck both children, dragging them for some distance.

[5] Tanner sustained a serious brain injury resulting in significant cognitive impairments. Krystal sustained severe burns to her left leg, a traumatic brain injury and a back injury. It is alleged that these injuries resulted in Krystal developing significant psychiatric and addiction issues. The mother of the children is also a plaintiff under the Family Law Act, R.S.O. 1990, c. F.3, as is their half-brother Spencer. It is alleged that the mother found the care of her disabled children to be overwhelming and had a nervous breakdown in November 2007, requiring hospitalization. Spencer has been diagnosed with post-traumatic stress disorder and depression, and has also been hospitalized. Medical reports for Tanner indicate that he will never be able to live on his own and will probably never work.

[6] The defendants in the action are the driver (and also the owner of her car), the owner of the Lauzon Plaza and the City of Windsor. The driver admits liability, but the limit of her insurance is $1 million. The plaza and the city deny liability. Counsel for the plaintiff estimated the total damages for all plaintiffs to be $28 million.

The Decision Under Appeal

[7] The trial was scheduled for eight weeks to commence in Windsor on September 8, 2014. A few months prior to the trial date, the defendants learned of a material change in circumstances relevant to damages and, in particular, future care costs. They brought a motion seeking further discovery and medical assessments, which relief was granted by the motion judge, and which is not part of this appeal. At the same time, the defendants proposed using the September 8 trial date to deal only with the issue of liability and sought an order bifurcating the trial, so that the damages assessment would proceed subsequent to the determination of liability.

[8] On the issue of bifurcation, the motion judge's entire reasons state:

With respect to the bifurcation issue referred to in rule 6.1.01, I choose to adopt the reasons of Smith J. in the case of Wang v. Byford-Harvey, 2012 ONSC 3030, 110 O.R. (3d) 703. [page772]

He indicated that due to time pressures he was unable to provide more detailed reasons at that time, but that he would "in due course deliver full reasons". However, no further reasons were ever delivered.

[9] In the Wang v. Byford-Harvey [ (2012), 2012 ONSC 3030, 110 O.R. (3d) 703, [2012] O.J. No. 2281 (S.C.J.)] decision relied upon by the motion judge, Smith J. set out the test to be applied, acknowledging that the power to bifurcate is [at para. 23] a "narrowly circumscribed power" to be exercised [at para. 24] "in the interest of justice, only in the clearest of cases". Smith J. also listed a number of factors to be taken into account in deciding whether to order bifurcation.

[10] Although the motion judge in this case referred to rule 6.1.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], he did not set out the text of that rule, nor did he advert to the fact that the rule refers to the consent of all parties. The rule, which came into force on January 1, 2010, states as follows:

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.

[11] This rule would have been in force in 2012, when Wang v. Byford-Harvey was decided, but Smith J. makes no reference to it, relying instead on principles taken from cases that preceded the amendment.

Standard of Review

[12] Whether a motion judge has the power to order bifurcation of a trial over the objection of one of the parties is a pure question of law. As such, the motion judge is required to be correct.[^1]

Analysis

[13] On a plain reading of rule 6.1.01, a motion judge has a discretion to order bifurcation, but only if all parties consent. Even with the consent of the parties, the court is not required to order bifurcation, but without consent he or she has no power to do so. In other words, the consent of the parties is a pre-condition to the exercise of the discretion.

[14] At common law, a judge has inherent jurisdiction to control the process of the court, which would include the conduct of a trial. The respondents argue that the motion judge in this case [page773] had inherent jurisdiction to order bifurcation, notwithstanding the language of rule 6.1.01.

[15] Case law prior to the amendment of rule 6.1.01 supported this jurisdiction, but cautioned that it be narrowly circumscribed and exercised in only the clearest of cases where it was in the interest of justice to do so. Those cases also noted that the court should be slow to exercise the power in the face of an objection by one of the parties.[^2]

[16] The case law is clear that the inherent jurisdiction of the court can be removed by the legislature by "clear and precise language indicating the contrary". The court's inherent jurisdiction and its power conferred by statute can live side by side, but the inherent jurisdiction can never be exercised in a manner that would contravene a statutory provision.[^3]

[17] In Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., a motion judge authorized the advance of moneys by a first mortgagee to a receiver, and stipulated that those funds would have priority over all other charges and encumbrances on title. There had been a mechanics lien registered on title prior to the order in the receivership, which by statute was entitled to priority over all subsequent encumbrances. The Supreme Court of Canada held that the inherent jurisdiction of the court could not empower a judge to make an order "negating the unambiguous expression of the legislative will".[^4] Further, the Supreme Court cited a decision of the Manitoba Court of Appeal as being a "paradigm of the exercise of judicial discretion", and quoted from Freedman C.J.M. in that case as follows:[^5]

Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or Rule. Moreover, because it is a special and extraordinary power, it should be exercised sparingly, and only in a clear case. [page774]

[18] There is clear authority from the Ontario Court of Appeal that if a Rule of Civil Procedure can be said to "occupy the field" to which it relates, it will supersede any inherent jurisdiction to the contrary.[^6] In Toronto-Dominion Bank v. Szilagyi Farms Ltd., Morden J.A. considered whether the Court of Appeal had inherent jurisdiction to order security for costs and found that it did not. The Rules of Civil Procedure at that time provided for security for costs in certain circumstances, but the costs of an appeal were not mentioned. Morden J.A. considered the history of the rule. The prior version of the security for costs rule had stated that security for costs could be ordered "where by law or practice a party has heretofore been entitled to obtain security for costs, and without restricting the generality of the foregoing, also in the following cases". Under that version of the rule, security for costs would have been available for an appeal, as that had been part of the common law power. In 1913, the Rules were amended, with the new version (drafted by Justice Middleton) stating simply, "Security for costs may be ordered. . ." and then listing the circumstances in which such an order could be made, without any reference to the costs of an appeal. In these circumstances, Morden J.A. held that the court's inherent jurisdiction had been removed by the rule amendment. He stated, at para. 14:

Having regard to the foregoing, it seems clear to me that by (a) deleting virtually the whole of the opening words of former Rule 1198(1), which referred to the "law" and "the practice" respecting security for costs, and (b), further codifying what was considered to be the practice in new clauses (e) to (j), it was the intention of Mr. Justice Middleton that Rule 373 was to occupy the field, with the result that any former practice not provided for would no longer afford a basis for ordering security for costs. In short, the purpose of the change in wording must have been to change the law and not just "language polishing". See Bathurst Paper Ltd. v. Minister of Municipal Affairs of New Brunswick (1971), 1971 176 (SCC), 22 D.L.R. (3d) 115 at p. 119, [1972] S.C.R. 471 at 477-8, 4 N.B.R. (2d) 96 (S.C.C.).

[19] This approach was applied by Newbould J. in Waxman v. Waxman[^7] in relation to provisions in the Rules for the pre-trial examination of third party witnesses. The plaintiffs sought to examine an employee of one of the defendants. The grounds specified in rule 31.10 for such an examination were not met, [page775] but the plaintiff argued there was inherent jurisdiction in the court to do so. Newbould J. found he was without jurisdiction, stating, at para. 29:

In my view, the rules committee has occupied the field and made a code dealing with the right of a party to obtain pretrial discovery under rules 31.01 and 30.10, and the court has no inherent jurisdiction to make an order contrary to those rules under some residual discretion. If there is a problem with the rule, it is for the rules committee to consider.

[20] We were not referred to, and I am not aware of, any appellate level decisions dealing directly with the inherent jurisdiction of a judge to bifurcate a trial over the objection of a party since the enactment of the new rule in 2010. However, there are two decisions which, although not on all fours, are relevant and persuasive.

[21] In Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills, the Ontario Court of Appeal considered an appeal from a decision of a trial judge bifurcating liability and damages in an action against solicitors for negligence. The case was decided in 1986, when there were no specific rules dealing with the power to bifurcate. Morden J.A. (writing for the unanimous court) held that there was inherent jurisdiction to split a trial in the interests of justice. He noted, however, that this inherent power could not be exercised in a jury trial and that the court should be slow to exercise it even in a judge-alone trial over the objection of a party. He held as follows, at para. 11:

However, since it is a basic right of a litigant to have all issues in dispute resolved in one trial it must be regarded as a narrowly circumscribed power. This approach is supported by the familiar statutory admonition which is continued in s. 148 of the Courts of Justice Act, 1984 (Ont.), c. 11:

148. As far as possible, multiplicity of legal proceedings shall be avoided.

There is also the judicial admonition of Meredith C.J.C.P. in Waller v. Independent Order of Foresters (1905), 5 O.W.R. 421 at p. 422: "Experience has shewn that seldom, if ever, is any advantage gained by trying some of the issues before the trial of the others is entered upon, . . ." The power should be exercised, in the interest of justice, only in the clearest cases. We would think that a Court would give substantial weight to the fact that both parties consent to the splitting of a trial, if this be the case. On the other hand, a Court should be slow to exercise the power if one of the parties, particularly, as in this case, the defendant (see Emma Silver Mining Co. v. Grant (1878), 11 Ch. D. 918 at p. 928), objects to its exercise.

[22] The Court of Appeal returned to this issue in its 2010 decision in Kovach (Litigation Guardian of) v. Kovach [(2010), 2010 ONCA 126, 100 O.R. (3d) 608, [2010] O.J. No. 643 (C.A.)]. In that case, the defendants in a personal injury motor vehicle accident case [page776] sought to have the issues of liability and damages bifurcated. The motion was dismissed by the master on the grounds that there was no jurisdiction to bifurcate a jury trial unless all parties consented. Ultimately, this was upheld by the Court of Appeal. Interestingly, rule 6.1.01 came into force after the master's decision, but before the matter reached the Court of Appeal. The Court of Appeal held that the previous law applied. The Court of Appeal also ruled that the established law in Ontario is that there is no jurisdiction to order bifurcation in a jury trial unless all parties consent. Blair J.A. (writing the unanimous judgment of the court) referred to the decision of Morden J.A. in Elcano as determinative and binding on this issue, holding as follows (at para. 18):

First, Justice Morden's comment in Elcano is not obiter dicta, in my view. An expert in procedural matters, Justice Morden was not given to discursive comments. It is true that Elcano was not a jury case. Having concluded that the court's inherent jurisdiction empowered it to bifurcate a trial in appropriate circumstances, however, it was necessary for him to state the exception in order to make the proposition he was enunciating accurate. This does not make the caveat he expressed obiter; it was essential to his reasoning process, and therefore part of the ratio decidendi of the decision.

[23] Counsel for the defendant/appellant Kovach argued in the Court of Appeal that if there was inherent jurisdiction to bifurcate in judge-alone trials, it should not be different for jury cases. He submitted that to permit bifurcation in both cases was consistent with modern principles of case management. This argument was rejected by the Court of Appeal. Blair J.A. held (at para. 30):

There are a number of answers to this hypothetical question. For one, when issues are separated in a judge alone trial, it is the same judge -- absent consent to the contrary -- who deals with all the issues. He or she simply does so at different times. This is because of the principle of seizure discussed above. For another, s. 108(3) of the Courts of Justice Act provides specific statutory authority in a jury case for issues to be removed from the jury to be tried by judge alone. No such authority exists for the splitting of issues to be tried by two or more juries.

[24] Further, the court specifically rejected the relevance of the case management rule, relying, in part, on the new rule 6.1.01. On that issue, he stated as follows (at paras. 33-34):

This rule accurately reflects an important philosophy underpinning the introduction of case management in Ontario: the expeditious, but just and less costly, determination of case-managed civil proceedings. However, bifurcation is broader than case management, and there is nothing in former Rule 77 -- the case management rule -- that touches on the severance of issues in an action for separate trials. Indeed, when the Rules Committee enacted the new rule governing separate hearings, it placed it in a part of the rules far removed from case management. Rule 6.1.01 -- effective [page777] January 1, 2010 -- is the first time a rule speaking to bifurcation has been promulgated. It signals that, in the opinion of the Rules Committee at least, the bifurcation of a trial, jury or non-jury, is not generally a good idea unless the parties consent. To repeat, rule 6.1.01 states:

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.

This new rule may well permit the bifurcation of issues of fact or of mixed fact and law even where a jury notice has been filed, where the parties consent, thus surmounting the jurisdictional impediments previously in place. But the new rule does not apply to the case at bar.

[Emphasis added]

[25] I do not take the Court of Appeal's reference to rule 6.1.01 in Kovach as binding in the case now before this court. The court was clear in Kovach that the new rule did not apply. However, the decision is nevertheless of persuasive value. It seems to me that the court was of the view that the new rule would take precedence over previous custom with respect to a judge's inherent jurisdiction, and that the clear intent of the rule was to require consent before any trial could be bifurcated, whether jury or judge alone. The rule itself makes no distinction between a jury trial and a non-jury trial. If the effect of the new rule is that there can be bifurcation of a jury trial, but only on consent of all parties, that effect must apply equally to all trials, whether jury or non-jury.

[26] In my view, such an interpretation is also consistent with a plain and ordinary reading of the rule. The Rules Committee clearly intended to impose a rule as to when a judge has the power to exercise a discretion with respect to bifurcation of a trial. That discretion, according to the rule, only arises where the parties consent. I find this to be a clear and unambiguous direction that ousts the prior inherent jurisdiction of the court. It does not matter whether one applies the test of whether the Rules can be said to "occupy the field", or whether it is "clear and unambiguous". On either articulation of the test, it is met. The language is clear and unambiguous. The rule occupies the field. Making an order for bifurcation without the consent of the parties would conflict with the rule. On any test, the inherent jurisdiction of the court is ousted.

[27] As I have stated, neither the Elcano nor Kovach decisions deal precisely with the issue now before this court. There would appear to be no Court of Appeal decision squarely on point. However, a number of judges of the Ontario Superior Court have dealt with the issue. All but one judge found no power to order bifurcation in the face of an objection by one of the parties. [page778]

[28] In Wm. Whiteley Ltd. v. Gauthier,[^8] Turnbull J. dealt with a motion by a defendant in a judge-alone trial to bifurcate liability and damages on the grounds that certain proprietary information would not need to be produced unless liability was established. Regarding bifurcation, Turnbull J. stated (at para. 9):

It must be noted that Justice Osborne recommended to Rules Committee that bifurcation be available either on motion by the parties or on the Court's own initiative. That recommendation was not adopted and so I conclude, the discretion to bifurcate requires the consent of the parties and the approval of a judge. In this case, the plaintiffs do not consent to bifurcation. Hence, I dismiss the motion.

[29] The same conclusion was reached by Campbell J. in Trinity Anglican Church v. Janeiro,[^9] in which two of nine defendants requested bifurcation of a trial, but the remaining defendants and the plaintiff were opposed. Campbell J. held (at paras. 3 and 4):

Counsel for the moving defendants argues that this rule perfects the discretionary inherent jurisdiction of the court to order the bifurcation of issues where it is in the interests of justice. I disagree. The clear and unequivocal language of the rule permits the court to order bifurcation only "with the consent of the parties". If the court maintained a jurisdiction to order bifurcation in the face of opposition from the parties such a result would void the opening language in the rule. This rule makes it clear that the "consent of the parties" is a necessary pre-condition to the discretionary jurisdiction to make an order of bifurcation.

The standard procedural texts and rule annotations all observe that, while Justice Osborne, in his report on making Justice More accessible and affordable, recommended that the Civil Rules Committee should consider passing a rule that permits bifurcation on any motion or on the court's own initiative, the committee did not accept this recommendation, but rather created rule 6.1.01 (which came into effect on January 1, 2010) which requires the consent of the parties. . . . This same conclusion was reached by Turnbull J. in Wm. Whiteley Ltd. v. Gauthier, 2010 ONSC 396, [2010] O.J. No. 149 (S.C.J.) at para 9, A decision with which I am in respectful agreement. This conclusion has also, in my opinion, been at least impliedly accepted by the Court of Appeal for Ontario in Kovach v. Kovach, 2010 ONCA 126, [2010] O.J. No. 643, at para. 34, where Blair J.A., delivering the judgment of the court, after quoting rule 6.1.01, commented that this rule may well permit the bifurcation of issues, even where a jury notice has been filed, "where the parties consent . . ." the language of the rule requiring the consent of the parties was placed in italics for emphasis. Given my interpretation of rule 6.1.01, and the opposition to this motion by a number of other parties, the motion by the moving defendants must be dismissed. I simply have no [page779] jurisdiction to allow the motion and make the requested bifurcation order in the absence of "the consent of the parties."

(Emphasis added)

[30] To similar effect is the decision of Brown J. in MTCC No. 831 v. Khan.[^10] This matter involved a defendant (and his related companies), condominium corporations, lenders and condominium owners. The parties had consented to resolving a threshold issue, which, in effect, bifurcated the trial on the basis of whether a loan was enforceable against the condominium corporation. Upon allegations of fraud against the defendant, some of the parties withdrew their consent to hearing this threshold issue. Brown J. stated, at paras. 6 and 7:

By giving directions for the hearing of the Threshold Issue, in effect I was ordering a separate hearing on one, of several, issues raised by these actions. Rule 6.1.01 gives the court jurisdiction to make such a bifurcation order with the parties' consent. At the time I made that order, I had the consent of all the parties.

. . . Given their withdrawal of consent, I have concluded that I do not possess the jurisdiction under Rule 6.1.01 to compel the parties to proceed with a hearing on the Threshold Issue scheduled for early October.

[31] Most recently, in Dickson v. DiMichele,[^11] Bale J. also held there was no jurisdiction to bifurcate without the consent of the parties. In that case, a pizza delivery person alleged being attacked by a dog. After setting the action down for trial, the plaintiff brought a motion for leave for summary judgment to determine the issue of liability and contributory negligence. Bale J. determined that the plaintiff's request was, in effect, a motion to bifurcate the action into liability and damages. He held, at para. 15:

Under rule 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." In this case, the plaintiff does not have the defendants' consent.

[32] Counsel for the respondents sought to distinguish these authorities on the basis that it was unclear whether they were judge-alone trials as opposed to jury trials. In fact, based on a review of the court files, they are all non-jury trials. [page780]

[33] Thus, the overwhelming weight of the case authority is that the rule ousts the inherent jurisdiction of a motion judge to order bifurcation of a non-jury trial. Under the rule, bifurcation can only be ordered if all parties consent, and even then the judge retains a discretion to determine whether or not it is appropriate to do so.

[34] The one decision that appears to go in the opposite direction is that of Smith J. in Soulliere (Litigation guardian of) v. Robitaille Estate.[^12] In that case, Smith J. held that rule 6.1.01 does not remove the court's inherent jurisdiction to bifurcate a trial. He relied on the decision of the Court of Appeal in Kovach for that proposition, stating that in Kovach the Court of Appeal held that a judge has no jurisdiction under rule 6.1.01 to order bifurcation in a jury trial. Smith J. then distinguished the case before him on the basis that it was not a jury trial. With the greatest of respect, that is a mischaracterization of what was decided in Kovach. The Court of Appeal was dealing with a situation that arose before the rule came into force. The ruling that bifurcation could not be ordered in a jury trial was a ruling in respect of the common law inherent jurisdiction that existed prior to the new rule coming into force. However, the court suggested that things might well be different under the new rule. Smith J. referred briefly to the decision of Campbell J. in Trinity Anglican Church v. Janiero, but declined to follow it. He did not refer to any of the other decisions of this court to which I have referred above. For that reason, I do not find this decision to be of the same persuasive force. Further, I agree with those judges who have found the language of rule 6.1.01 to be conclusive and to have displaced the court's inherent jurisdiction to order bifurcation.

[35] Counsel for the respondents submits that it could not have been the intent of the Rules Committee to remove the inherent jurisdiction to order bifurcation because the rule is expressed in permissive rather than prohibitory manner. He points as well to the trend towards a more expansive approach to these kinds of issues, as reflected in other rules and jurisprudence in areas such as summary judgment, which he suggests supports an interpretation of the rule that retains the common law jurisdiction to order bifurcation over the objections of the parties in non-jury trials. I do not find that submission to be persuasive. The rule is clear. It makes no distinction between [page781] a jury trial and a non-jury trial. In both cases, consent is required before the judge's discretion as to whether to order bifurcation is triggered. Whether this is expansive or restrictive of the prior common law is irrelevant. In any event, the current rule could be said to be both expansive (in that it applies to jury trials) and restrictive (in that for non-jury trials consent is now mandatory, whereas at common law it was only a very strong factor). Perhaps the intent was to take a balanced approach. However, it is the language of the rule itself which governs. In the absence of any ambiguity or lacunae in the rule itself, it is not relevant to consider what might have been the intention of the Rules Committee, particularly when that requires us to speculate on what it might have been.

[36] Counsel for the respondent also submits that there is provision in the Rules for a judge to dispense with compliance with the Rules where necessary in the interests of justice.[^13] It is simply not the case that the presence of this provision means that a rule cannot take away the inherent jurisdiction of a judge, for the reasons I have already discussed and the case law referred to above. If everything is to be decided by an individual judge's view of what is "necessary in the interests of justice", there would be no need for rules at all. In my view, similar to the findings of Morden J.A. in Toronto Dominion Bank v. Szilagyi Farms dealing with jurisdiction by analogy under rule 1.04(2), these saving provisions in the Rules are meant to cure irregularities or address non-compliance with issues of minor importance, and cannot provide jurisdiction to resolve an issue "[involving] considerations of policy and serious consequences to the progress of a proceeding" in the face of a rule that provides to the contrary.[^14]

Conclusion

[37] The question raised on this appeal is whether a motion judge continues to have inherent jurisdiction to order bifurcation or whether that power is limited by the wording of rule 6.1.01 to circumstances in which all parties consent.

[38] In my view, the rule is clear and comprehensive and requires consent as a precondition to the motion judge having any discretion to exercise. That resolves the issue before this court, and requires that the decision of the motion judge be [page782] quashed. Given that result, there is no need to deal with the other grounds of appeal.

[39] It is important when dealing with rules of new and potentially broad application to not decide anything more than is specifically before the court in the given case. It may not necessarily follow from this decision that a trial judge who has commenced a trial would have no jurisdiction to direct the order in which evidence is to be called in that particular trial, including that all of the evidence on one particular point would be called prior to the evidence on another point. Likewise, where there is provision in the Rules for deciding an issue by summary judgment or by a ruling on a point of law, that situation might not necessarily be the same as a motion for bifurcation of a trial, such that rule 6.1.01 might not be paramount. Our ruling in this case should be confined to the specific issue before us -- whether a motion judge can order bifurcation of a trial without the consent of the parties.

[40] In the result, this appeal is granted and the order of Gates J. bifurcating the trial is set aside. Gates J. had ordered costs in favour of the defendants (respondents) in the total amount of $11,247.94, plus applicable HST. That award was based on the defendants having been completely successful on all issues raised on the motion, which included leave to bring the motion and the right to further defence medicals and examination for discovery. Some adjustment is required in order to reflect the different disposition by this court on the bifurcation issue. In all the circumstances, the previous award is varied to make costs of that motion payable to the defendants in the amount of $6,500, inclusive of taxes and disbursements.

[41] The appellants have been wholly successful on this appeal and are entitled to their costs. The costs of the appeal are fixed at $15,000, which reasonably reflects the time spent, the appropriate hourly rate, the complexity of the matter and the reasonable expectation of the parties. Those costs are payable forthwith. The costs ordered by Gates J., as amended by this court, may be set off against the costs awarded herein to the appellants.

[42] CORBETT J. (concurring): -- I have had the benefit of reading the reasons of Molloy J. in draft. I agree with her that the appeal should be allowed, but I do not agree with her reading of rule 6.1. [page783]

Rule 6.1 Is a Modest Liberalization of the Power to Order Separate Trials of Issues

[43] Rule 6.1 can be read as proposed by Molloy J. But it need not be. A more expansive reading of the rule sees it as a slight advance in flexible procedures, consistent with the thrust of recent civil justice reform. And that, in my view, is the proper way to read this rule -- not as a substantial derogation of the court's inherent jurisdiction to control its own process, but as a slight expansion of it.

[44] I reach this conclusion for the following reasons.

The "Plain Meaning" of the Rule

[45] The "plain meaning" analysis of rule 6.1 does not point ineluctably to the conclusion that the common law power to order separate trials has been displaced. Rule 6.1 does not say that the court may "only" order separate trials when the parties consent. It does not say that the court "may not order separate trials of issues except with the parties' consent". The language is permissive, not exclusive.

Has the Rules Committee "Occupied the Field"?

[46] Molloy J. locates exclusivity in a principle of statutory interpretation: where the legislature has "occupied the field", it has provided an entire scheme for the topic on which it has legislated. She relies upon a decision of Morden J.A., sitting as a single motion judge in the Court of Appeal, in TD Bank v. Szilagyi Farms, concerning the absence of inherent jurisdiction to order security for costs of an appeal.[^15] In my view, that case is distinguishable:

(a) In TD Bank v. Szilagyi Farms, previous practice had permitted security for costs both at trial and on appeal. The amended rules provided for security for costs at the trial level but not on appeal. From this history, Morden J.A. inferred legislative intent not to continue a power to order security for costs of an appeal. Morden J.A. concluded that the very purpose of amendment had been to occupy the field [at para. 14]: "it was the intention of Justice Middleton [who drafted the amendments] that Rule 373 was to occupy the field, with the result that any former practice not provided [page784] for would no longer afford a basis for ordering security for costs". This conclusion flowed from a detailed review of the legislative history of the provision. As I note below, the legislative history of rule 6.1 does not establish that the Rules Committee intended to "occupy the field".

(b) In most procedural matters, the court could, in its discretion, grant almost any procedural order on consent. Thus, one could read rule 6.1 as having no conceivable content other than to "occupy the field". However, that is not the case here. Past jurisprudence established that there is no inherent jurisdiction to order separate trials in a case to be tried by a jury.[^16] This prohibition could not be overcome with the parties' consent. Rule 6.1 now says otherwise. This is a small, though significant, expansion in the court's ability to control its own process.

[47] Just because the Rules Committee has legislated on a topic does not mean that it has "occupied the field". As stated by the Supreme Court of Canada in R. v. Rose:

[T]he inherent jurisdiction of superior courts is a significant and effective basis for preventing abuse of the court's process and ensuring fairness in the trial process. This enduring and important jurisdiction of the court, if it is to be removed, can only be accomplished by clear and precise statutory language.[^17]

[48] This issue was canvassed recently in Ziebenhuis v. Bahlieda on the question of whether the court has inherent jurisdiction to order a party to undergo assessment by a person other than a "health practitioner".[^18] Section 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 permits a court to order an examination by a "health practitioner". Section 105 contains no exclusivity language; it is couched in much the same sort of language used in rule 6.1. [page785]

[49] In Ziebenhuis, this court held that s. 105 does not "occupy the field" to preclude an order for an examination by someone other than a "health practitioner".[^19] It reasoned that a broader scope of examinations is now commonplace in personal injury cases. Thus, there is a "gap" in the statutory provisions, rather than an exclusive code that precludes other kinds of court-ordered examinations by necessary implication.

[50] The Court of Appeal upheld the Divisional Court's decision.[^20]

[51] In effect, in Ziebenhuis, the courts have concluded that a remedial provision such as s. 105 of the Courts of Justice Act is not intended to oust the inherent jurisdiction of the court to adopt and adapt its processes to do justice in accordance with the spirit of the Rules of Civil Procedure. I come to the same conclusion respecting rule 6.1 -- it is intended to enhance the court's abilities to fashion flexible and proportionate procedures, not to curtail the reasonable exercise of the court's inherent jurisdiction to promote justice.

Jurisprudence on Rule 6.1

(a) The Court of Appeal

[52] Molloy J. notes the comments of the Court of Appeal in Kovach.[^21] Those comments did not go so far as to hold that the court has no inherent jurisdiction to order separate trials unless the parties consent. What the Court of Appeal said was:

Rule 6.1.01 -- effective January 1, 2010 -- is the first time a rule speaking to bifurcation has been promulgated. It signals that, in the opinion of the Rules Committee at least, the bifurcation of a trial, jury or non-jury, is not generally a good idea unless the parties consent. To repeat, rule 6.1.01 states:

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.

This new rule may well permit the bifurcation of issues of fact or of mixed fact and law even where a jury notice has been filed, where the parties consent, thus surmounting the jurisdictional impediments previously in place. But the new rule does not apply to the case at bar.[^22] [page786]

[53] "Bifurcation" is permitted in a jury trial only where the parties consent. This permission "surmounts the jurisdictional impediments previously in place". While bifurcation may "not generally be a good idea unless the parties consent", the court does not say that the inherent jurisdiction to order separate trials in non-jury cases has been removed.

[54] I do not take from Kovach that the Court of Appeal has decided this point one way or the other. Rule 6.1.01 ends one "jurisdictional impediment". There is no conclusion in Kovach that it creates another. The Court of Appeal did not go further because it did not need to do so: "the new rule [did] not apply to the case at bar". The observation that "bifurcation of a trial, jury or non-jury, is not generally a good idea unless the parties consent" is consistent with the strict test for bifurcation used in rare and exceptional cases. It does not, on its face, imply absolute prohibition absent consent in non-jury cases.

[55] Finally, it is useful to note the reason for prohibiting bifurcation in jury trials. It is not because of the court's general reluctance to bifurcate. It is because of the jury. The jurisprudence holds that the statutory right to trial by jury, established in the Courts of Justice Act, cannot be defeated by severing issues for trial by a different trier of fact.[^23] Thus, there may be cases where bifurcation would promote efficiency and justice for the parties and the administration of justice, but the right to trial by jury would "trump" these considerations. Under rule 6.1, the parties may now consent to bifurcation of a jury trial -- an evolution of practice that qualifies but does not undermine the right to trial by jury because it is premised on waiver of that right by the persons entitled to exercise it.

(b) Superior Court of Justice

[56] Molloy J. notes that most trial-level decisions on this issue have come to the conclusion that rule 6.1 ousts the court's inherent jurisdiction to order separate trials in the absence of consent. She also notes that many of these decisions arose in non-jury cases. I agree with these observations. However, the sample size is small, and these cases deal with the issue on the basis of a "plain reading" analysis. I consider that Molloy J. puts the case for this reading at its highest, and prior trial-level decisions to the same effect do not add to the force of Molloy J.'s analysis.

[57] I do not agree, however, that there is a strong Superior Court consensus on this issue. As the cases discussed below [page787] show, bifurcation orders, though rare, have continued to be made since rule 6.1 was enacted, generally without any suggestion that the court's inherent jurisdiction to make the order was in any doubt.

Historic Use of Inherent Jurisdiction to Order Separate Trials

[58] The law has a strong preference for one trial, before one trier of fact, that leads to one set of appeals, resulting in a final decision, that puts an end to the matter. "Litigation by instalment" is frowned upon.[^24] The jurisprudence makes it clear (a) that the power has traditionally been exercised in "rare and exceptional cases" and only where "it would be the most just, cost effective and expeditious use of time and judicial resources to have separate hearings on liability and damages"; and (b) that although such orders are exceptional, they can be made in a broad range of cases. These orders are a useful procedural tool, one arrow in the quiver of procedural weapons available to the court to control its process in the interests of justice. A few examples illustrate these points.

A. Woodbury v. Woodbury

[59] In Woodbury v. Woodbury, the master ordered severance of liability and damages issues in the context of a personal injury claim not dissimilar to the case at bar. The case arose from a terrible boating accident. Mr. Woodbury was driving his boat at high speed, towing two children on an inner tube. He collided with another boat operated by Mr. Hamilton. The Hamilton boat was stationary. The occupants of the Hamilton boat shouted and waved at Mr. Woodbury when they saw that he was coming too close to them. After the collision, Mr. Hamilton and one of his passengers dove into the water and rescued the two children, one of whom was the plaintiff, Mr. Woodbury's young son. The plaintiff sued his father. He also sued Mr. Hamilton, the person who likely saved his life.

[60] Mr. Hamilton moved for summary judgment. In deciding that motion, Ellies J. held that "[t]here is no doubt that Mr. Woodbury is responsible for the accident. The issue in this motion is whether it can be said that Mr. Woodbury is entirely responsible" (emphasis in original). Ellies J. dismissed the motion for summary judgment, concluding that a trial would be necessary to decide "whether the Hamilton boat should have been where it was [page788] at the time of the collision and why the Woodbury boat was not noticed until a matter of seconds before the accident".[^25]

[61] The plaintiff's injuries were catastrophic. Damages were claimed in the range of $20 million. The plaintiff's father did not defend the claim against him. The plaintiff delivered a brief of 1,800 pages of medical evidence on the damages issues. Mr. Hamilton was not insured for this claim.

[62] On the bifurcation motion, Master Muir found that "[a]n enormous amount of medical evidence will be necessary [on the issue of damages] . . . [T]he issues surrounding Hamilton's liability, however, can be made ready for trial in very short order."[^26] The master ordered separate trials on damages and liability issues.

[63] On appeal, E.M. Morgan J. upheld the master's decision on the basis of a long line of cases permitting severance of issues in exceptional cases.[^27] I agree with both E.M. Morgan J. and Master Muir. Why should Mr. Hamilton be put through the ruinous costs of a trial on damages when the liability issue is so discrete? Why should the court spend weeks of court time on a damages trial before first determining liability, an issue that might be tried in a few days?

[64] The summary judgment motion was decided by Ellies J. before the Supreme Court of Canada's decision in Hryniak v. Mauldin.[^28] With the benefit of Hryniak, the result of the motion should have been different. If Ellies J. had concluded, as he did, that oral evidence was necessary to decide whether Mr. Hamilton was liable for the collision, under Hryniak he could and should have directed a trial of that issue before him. The affidavits on the motion for summary judgment could have served as the evidence-in-chief, supplemented by brief examination-in-chief and cross-examinations. All necessary directions could have been given to conduct that trial promptly and efficiently. If the court found no [page789] liability, then the claim would have been dismissed and the damages trial never held. If the court found liability, then it could have given directions for the damages trial. On the authority of Hryniak, the motion judge would ordinarily seize himself of the damages trial. However, given how discrete the issues were in this case, there would have been no impediment to the motion judge ordering that the damages trial take place before some other judge if there was some good reason for the motion judge not to hear it himself.

[65] Thus, in my view, under Hryniak the court has the power to proceed with separate trials using the summary judgment procedure. I see no reason why the process must be different if there is no motion for summary judgment. The effect is the same either way. And I would read rule 6.1 as operating in step with Hryniak, rather than as a reduction in the court's ability to control its own process.

[66] Finally, before leaving Woodbury, I note Master Muir's and E.M. Morgan J.'s firm statements of principle that separate trials are ordered only in "exceptional and rare cases" where such an order is in accordance with the spirit and intent of the Rules of Civil Procedure. I can find no fathomable reasons for the Rules Committee to eliminate this narrow jurisdiction.

B. Unwin v. Crothers

[67] In Unwin v. Crothers, Master Hawkins ordered separate trials of certain threshold liability issues and other issues for claims involving breach of trust and breach of contract. The master then ordered separate documentary and oral discoveries of liability and damages issues, deferring the latter until completion of the former.

[68] On appeal, Spies J. noted that the master has no inherent jurisdiction to order separate trials. She also found that there was no authority for such an order by the master in the general rules that apply to civil proceedings. She did, however, find jurisdiction for the master's order in rule 77.04(2), because the master was acting under the case management rules. Spies J. reasoned that the master's order was "necessary to carry out the purpose of" the case management rules [rule 77.01(1)], and in particular [at para. 59] to "reduce[] unnecessary cost and delay in civil litigation, facilitate[] early and fair settlement[] and bring proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding" [rule 77.02]. Spies J. found that the master's order was consistent with the general principles that govern the exercise of inherent jurisdiction by a judge to order separate trials, and thus that the [page790] master did not err in principle and was not clearly wrong in the exercise of discretion to order separate trials.[^29]

[69] Master Hawkins concluded that an order for separate trials of issues in this case furthered the fundamental goals of the Rules of Civil Procedure. Spies J. found that the master did not err in so concluding. I agree. And again, I can find no fathomable reason why the Rules Committee would eliminate this narrow but useful procedural option.

C. Schulman v. Ganz

[70] The Family Law Rules expressly authorize separate trials of issues.[^30] Thus, authorities in the family law area do not gainsay Molloy J.'s reading of rule 6.1. But it is still useful to consider how this issue plays out in the family law context.

[71] In Schulman v. Ganz, the parties contested the validity of a marriage contract that had been entered into in 1996. If the contract was valid, it precluded various claims in the family law proceedings. Stevenson J. cited both the Family Law Rules and the court's inherent jurisdiction as a basis for jurisdiction. She then reviewed in some detail the test for ordering separate trials, citing the controlling authorities in family law cases and in general civil litigation. She found that the factors weighed in favour of ordering separate trials.[^31]

[72] This issue arises regularly when the validity of a marriage contract or separation agreement is in issue. The cases go both ways, not on the issue of jurisdiction, but on whether separate trials should be ordered in the circumstances of the particular case.[^32] The point to be taken from this jurisprudence: [page791] bifurcation can be a useful tool to advance the goal of proportional justice in the family law context. In my view, it is no less useful in the context of civil cases.

Summary

[73] As cited by Molloy J., there are several trial-level decisions that conclude that the court has no jurisdiction to order separate trials in the absence of consent. But there are cases where such an order has been made on the basis of the strict test that applies to the exercise of this aspect of the court's inherent jurisdiction. It is not the case that there has been a clear and invariable practice since the promulgation of rule 6.1 that an order for separate trials is not available without consent.[^33]

Context of the Rule

A. The Osborne Report

[74] Rule 6.1 was enacted in a specific context. The Honourable Coulter Osborne, in his 2007 report on civil justice, recommended expansion of the court's power to order separate trials.[^34]

While I view bifurcation to be the exception, cost considerations militate in favour of bifurcation in some cases. In commercial litigation, for example, when dealing with damages will expose a party and sometimes all parties to significant costs, it may make sense to separate the issues of liability and damages and deal with liability first. Upon the determination of one issue, parties may be inclined to settle the balance of the issues in dispute. This can result in a significant savings of time, money and judicial resources. It would also be of particular benefit to those litigants who cannot afford a trial of all issues. There is no doubt that bifurcation can delay the final resolution of the entire proceeding and, where issues overlap, evidence and testimony may need to be repeated. Where these concerns apply, a bifurcation order should not be made.

The Civil Rules Committee should consider prescribing, at least in general terms, when it is open to the court to make a bifurcation order. In [page792] the end, the court's discretion in making bifurcation orders should be expanded while recognizing that bifurcation remains the exception, not the rule.[^35]

While it would have been possible, of course, for the Rules Committee to reject the Osborne report's recommendations outright and decide that the court's inherent jurisdiction to order separate trials was too broad as it was, this would have been a rather strange thing to do. There is no contemporary jurisprudence raising concern about overuse of, or difficulties caused by, improper use of the inherent jurisdiction to order separate trials. There is no academic commentary calling for scaling back of this power. There is no "mischief" at which rule 6.1 was aimed if it is read as Molloy J. does. In this context, in my view, the common sense conclusion is that the Rules Committee decided to implement a portion of Justice Osborne's recommendations on this issue and not that the Rules Committee rejected the recommendations outright and narrowed the court's jurisdiction to order bifurcation.

B. Hryniak v. Mauldin

[75] The context provided by the Osborne report is illuminated further by the Supreme Court of Canada's decision in Hryniak v. Mauldin. In that case, the Supreme Court found that "proportionate procedures" were authorized by the Rules and the common law to the effect that summary judgment should be seen as a powerful tool for disposing of cases more quickly and efficiently. The opening sentences of that decision read as follows:

Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted.

Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just.

Summary judgment motions provide one such opportunity[.][^36] [page793]

[76] In Sweda Farms, the new approach to summary judgment motions mandated by Hryniak was summarized as follows:

. . . the court on a motion for summary judgment should undertake the following analysis:

1. The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

2. On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

3. If the court cannot grant judgment on the motion, the court should:

a. Decide those issues that can be decided in accordance with the principles described in 2), above;

b. Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

c. In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.[^37]

Sweda Farms was upheld by the Court of Appeal, and leave to appeal that decision was denied by the Supreme Court of Canada.[^38] The quoted passage from Sweda Farms has been quoted and applied by numerous decisions from the Superior Court of Justice.[^39] Hryniak eschews using the traditional trial as [page794] the measuring stick of fair civil procedure. And in so doing, it authorizes and, indeed, encourages, severance of issues for determination by different processes, at different times, potentially by different fact-finders. Where, for example, a court finally determines that a limitations defence does not apply, and does not seize itself of the trial of the rest of the case, the limitations issue is finally decided by the motions court, and the rest of the case is decided by another fact-finder (whether it be by judge or judge and jury) in a subsequent trial. This would not be an "order for separate trials" but it would have the same effect. And this would be the case whether the limitations issue is decided on a paper record, or whether there is a trial of an issue or a "mini-trial" of the limitations issue as part of the summary judgment process. Summary judgment motions may be used to dispose of a case entirely, of course. But where they are used to decide only some of the issues in a case, on Hryniak this will lead to "separate trials" in effect, if not in form.

[77] The power of the court on a motion for summary judgment to weigh evidence, evaluate credibility, draw reasonable inferences from the evidence and order the taking of oral evidence, [page795] were expressly provided in the Rules in 2008.[^40] At the same time the Rules were also amended to provide that where a court dismisses a motion for summary judgment, or grants it only in part, the court has a broad discretion to give directions or impose terms for the conduct of that trial.[^41] And at the same time, in an amendment to rule 1.04, the Rules Committee adopted the principle of proportionality as a principle of general application for interpretation of the Rules of Civil Procedure:

1.04(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.[^42]

[78] Rule 6.1 was enacted as part of the same set of amendments to the Rules that added to the court's powers on motions for summary judgment and added the "proportionality principle" to the interpretive principles in rule 1.04. It was part of a suite of amendments following on consideration of the Osborne report. Rule 6.1 fits with the spirit and context of those amendments if it is seen as a modest expansion of the court's inherent jurisdiction to order separate trials. With respect, it does not fit with this spirit and context if it is read as eliminating the court's existing inherent jurisdiction to order separate trials.

Separate Trials and Summary Judgment Powers Are Related

[79] These connections are illustrated by the decision of Bale J. in Dickson v. Di Michele.[^43] In that case, a pizza delivery person alleged that he had been attacked by the defendant's dog. After setting the action down for trial, the plaintiff sought leave to bring a motion for summary judgment prior to trial. Bale J. then considered rule 6.1, which he read as Molloy J. does. In the result, Bale J. dismissed the motion. I agree with Bale J. that a motion for summary judgment to decide one issue in a case is, in effect, a motion for separate trials. The Supreme Court of Canada recognized the desirability of the same judge deciding all issues in a case when it held that a judge deciding a motion for summary judgment should ordinarily seize herself of the balance of the proceeding. In so ordering, however, the Supreme Court of Canada recognized that it would not always be possible, [page796] and not always in the interest of justice or the efficient operation of the administration of justice, for the motion judge to seize herself of the rest of the case. In so recognizing, the Supreme Court of Canada has effectively directed that there is jurisdiction to order separate trials.

[80] If Bale J. is right in his analysis of this point in Dickson v. Di Michele, as I believe he is, and if Molloy J. is correct in her reading of rule 6.1, we have a further gloss on the Supreme Court of Canada's decision in Hryniak. The suggestion that a summary judgment motions judge seize herself of the case is not the optimal approach; it is the mandatory approach, since there would be no jurisdiction for a separate trial of other issues before a different trier of fact.

[81] The power to order separate trials is not hermetic, standing in isolation from other tools available to the court to control its own process. As noted above, the summary judgment rules and practices are one set of tools that enable the court to deal with issues incrementally, where appropriate. Case management rules augment these powers. So, too, does a trial judge's undoubted authority to control the schedule of a trial before her, both by directing the manner in which the evidence will be called, and by controlling the court schedule. As Molloy J. notes, rule 6.1 does not preclude a trial judge from ordering that the trial proceed in separate tranches before the same trial judge. So, in the case at bar, there would have been no jurisdictional impediment to the motions judge adjourning the bifurcation motion to the trial judge. The trial judge then would have had the undoubted jurisdiction to order that the trial proceed, as scheduled, on the issue of liability. The trial judge would have had the undoubted authority to then adjourn the trial to continue before her on the issue of damages at some future date. This would have produced precisely the same result as the order of the motion judge excepting one point only: the order of the motion judge contemplates that the issues of liability and damages would be tried by different judges. "Separate trials" in rule 6.1 refers to trials by different triers of fact, not temporally discontinuous proceedings before the same trier of fact. It is this one small distinction that founds the entire jurisdictional argument in this case. With the greatest of respect, in the result, we have a very small tail wagging a large and ill-trained dog.

The Spirit of the Rules of Civil Procedure

[82] The dominant feature of the Rules is their spirit, embodied in the central principles for their interpretation set out in rule 1.04: [page797]

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and the amount involved, in the proceeding.

(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.

There are good reasons for the resistance to separate trials on liability and damages in most cases. Often there is material overlap in the evidence. There is a risk of inconsistent findings of credibility, and even on issues of fact. There is a risk of multiple appeals, precipitating greater delay. The policy of the common law reflects this resistance: the test for ordering separate trials is a high one. But where a judge determines that an order for separate trials will secure the "just, most expeditious and least expensive determination" of a civil proceeding on the merits then she can, and should, order separate trials.

The Future

[83] A "literal" reading of rule 6.1 supports both my reading of rule 6.1 and Molloy J.'s reading of it. A "contextual" reading of the rule -- that places it as a response to the Osborne report, as part of a suite of amendments designed to implement principles of flexibility and proportionality -- and locates our understanding of it in a manner consistent with the spirit of the Supreme Court of Canada's decision in Hryniak -- supports my reading of the rule. And, stepping back from the issue, to bring an anagogic lense to bear on the basis of the interpretive principles that apply to the Rules, the result should be clear. The effect of my colleagues' decision is to compel a rule change to achieve what, surely, was the Rules Committee's intention. In the circumstances of this case, literalism does not demand such a result.

[84] The power to order separate trials is wholly procedural. It is far closer to Ziebenhuis -- ordering an assessment by someone other than a "health professional" -- than to TD Bank v. Szilagyi -- ordering a party to pay money into court as a precondition for pursuing an appeal. This is not a case where the Rules Committee's drafting is so deficient that it should be required to amend the rule to achieve its intended result.

Conclusion Respecting Jurisdiction

[85] For these reasons, I conclude that Gates J. had the jurisdiction to order separate trials of the issues of liability and [page798] damages. The issue, for me, is whether he should have done so in this case.

Separate Trials Not Warranted In This Case

[86] I conclude that the motion judge erred in principle in this case, but not because he lacked jurisdiction to make the impugned order.

[87] It seems clear that the primary reason the motion judge granted the impugned order was to make use of some of the trial time that had been reserved for this case two years previously. In that circumstance, the motion judge could and should have given directions that the trial would commence as scheduled, and that the bifurcation motion be adjourned to the trial judge. If the motion judge considered that the parties could not be ready for the damages issue in September 2014, he could also have directed that that portion of the trial would not proceed in September 2014, but that in all other respects the trial judge would decide how the trial would proceed.

[88] This order would have achieved a balance of the competing interests and left it to the trial judge to decide how best to try the case. It then would have been open to the trial judge to hear the evidence on the issue of liability, and adjourn the damages portion of the trial to continue before him at some later date. It would have been open to the trial judge to determine whether he would deliver his decision on the liability issue before hearing the damages evidence. It would have left it open to the trial judge to consider whether the damages issue should be tried by a separate trier of fact, an issue that might be easier to decide after the evidence on liability had been heard.

[89] The decision of the motion judge provided certainty to the parties -- they knew what would and what would not be tried in September 2014, and this would have assisted them in their preparation. On the other hand, it deprived the trial judge of full discretion to manage the proceeding before him.

[90] This is not to say that an order for separate trial could not be made in this case. As I noted above, this case is similar to Woodbury, where separate trials on damages and liability were ordered in a personal injury case. In Woodbury, however, the case was not so far advanced. In this case, the parties had been in litigation for a decade and were nearly ready for trial, subject to additional disclosure and discoveries on the damages issues. The motion judge inferentially acknowledged this point because he ordered that further production and discovery on damages issues proceed rather than await the decision on liability. [page799] The parties would incur the costs of preparing the damages issues -- the potential savings was six weeks of trial time -- not an inconsiderable savings, but not of the same nature as the savings in Woodbury.

[91] It is not clear that this is one of those rare cases where a bifurcation order should be made, and there appears to have been a better course available. The motion judge was unable to provide reasons for his exercise of discretion to order separate trials. A few weeks later, leave to appeal was granted and the order of the motion judge was stayed pending this appeal. As a result, the trial time in the fall of 2014 was lost; the liability trial did not go ahead. Thus, as of the time of the appeal, the primary apparent reason justifying the motion judge's order has disappeared, and we have no reasons to justify an order for separate trials on some other basis.

[92] In the result, there does not appear to be a continuing basis for the bifurcation order, and there appears to be no reason to constrain the conduct of the trial by leaving the order of the motion judge in place.

[93] I would allow the appeal and set aside the order of the motion judge, without prejudice to any order that the trial judge may make concerning the conduct of the trial including, without limitation, any order the trial judge may make for separate trials.

Appeal allowed.

Notes

[^1]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31.

[^2]: Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 2591 (ON CA), 55 O.R. (2d) 56, [1986] O.J. No. 578 (C.A.).

[^3]: R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81; Ziebenhaus (Litigation guardian of) v. Bahlieda (2014), 119 O.R. (3d) 275, [2014] O.J. No. 1583, 2014 ONSC 138 (Div. Ct.).

[^4]: Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 164 (SCC), [1976] 2 S.C.R. 475, [1975] S.C.J. No. 84, [1976] 1 W.W.R. 1, 57 D.L.R. (3d) 1, at para. 6.

[^5]: Baxter, supra, at para. 8, citing Montreal Trust Co. v. Churchill Forest Industries (Manitoba) Ltd., 1971 960 (MB CA), [1971] M.J. No. 38, [1971] 4 W.W.R. 542 (C.A.), at p. 547 W.W.R.

[^6]: Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988) 1988 4745 (ON CA), 65 O.R. (2d) 433, [1988] O.J. No. 1223, 28 C.P.C. (2d) 231 (C.A.); Waxman v. Waxman, [2011] O.J. No. 3780, 2011 ONSC 4707 (S.C.J.); (see, also, EnerWorks Inc. v. Glenbarra Energy Solutions Inc., [2012] O.J. No. 2272, 2012 ONSC 414 (S.C.J.)).

[^7]: Waxman v. Waxman, supra, note 6, at para. 29.

[^8]: Wm. Whiteley Ltd. v. Gauthier, [2010] O.J. No. 149, 2010 ONSC 396, 86 C.P.C. (6th) 343 (S.C.J.).

[^9]: Trinity Anglican Church v. Janeiro, [2012] O.J. No. 3791 (S.C.J.).

[^10]: MTCC No. 831 v. Khan, [2012] O.J. No. 4124, 2012 ONSC 5037 (S.C.J., Comm. List).

[^11]: Dickson v. Di Michele, [2014] O.J. No. 1925, 2014 ONSC 2513 (S.C.J.); see, also, Omerod v. Strathroy Middlesex General Hospital, [2013] O.J. No. 1048, 2013 ONSC 1499 (S.C.J.) and Hamilton (City) v. Canada (Attorney General), [2015] O.J. No. 852, 2015 ONSC 1043 (S.C.J.).

[^12]: Soulliere (Litigation guardian of) v. Robitaille Estate (2013), 117 O.R. (3d) 95, [2013] O.J. No. 3631, 2013 ONSC 5073 (S.C.J.).

[^13]: Rule 2.03.

[^14]: Toronto Dominion Bank v. Szilagyi Farms Ltd., supra, note 6, at para. 23.

[^15]: Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988), 1988 4745 (ON CA), 65 O.R. (2d) 433, [1988] O.J. No. 1223 (C.A.).

[^16]: Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 2591 (ON CA), 55 O.R. (2d) 56, [1986] O.J. No. 578 (C.A.), per Morden J.A. Any debate about the precedential force of Elcano on this point was laid to rest in Kovach (Litigation Guardian of) v. Kovach (2010), 2010 ONCA 126, 100 O.R. (3d) 608, [2010] O.J. No. 643 (C.A.), paras. 15-22.

[^17]: R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, para. 133.

[^18]: Ziebenhuis v. Bahlieda (2015), 126 O.R. (3d) 541, [2015] O.J. No. 3318, 386 D.L.R. (4th) 156, 2015 ONCA 471, affg (2014), 2014 ONSC 138, 119 O.R. (3d) 275, [2014] O.J. No. 1583 (Div. Ct.), affg [2012] O.J. No. 3542, 41 C.P.C. (7th) 183, 2012 ONSC 3787 (S.C.J.).

[^19]: Ziebenhaus v. Bahlieda, ibid. (S.C.J.), per M.L. Edwards J.

[^20]: Ziebenhuis v. Bahlieda (C.A.), supra, note 18.

[^21]: Kovach (Litigation Guardian of) v. Kovach (2010), 2010 ONCA 126, 100 O.R. (3d) 608, [2010] O.J. No. 643 (C.A.).

[^22]: Kovach, ibid., paras. 33-34 (emphasis in original).

[^23]: Courts of Justice Act, s. 108(1); Kovach, supra, paras. 19-22.

[^24]: Garland v. Consumers' Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629, [2004] S.C.J. No. 21, para. 90.

[^25]: Woodbury v. Woodbury, [2012] O.J. No. 3938, 2012 ONSC 4817 (S.C.J., Ellies J.), paras. 2 and 20.

[^26]: Woodbury v. Woodbury, [2013] O.J. No. 5754, 2013 ONSC 7736 (S.C.J., Master Muir), paras. 17 and 18.

[^27]: Woodbury v. Woodbury, [2014] O.J. No. 2495, 2014 ONSC 3149 (S.C.J., E.M. Morgan J.); Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 2591 (ON CA), 55 O.R. (2d) 56, [1986] O.J. No. 578 (C.A.); Bourne v. Saunby, [1993] O.J. No. 2606, 23 C.P.C. (3d) 333, 49 M.V.R. (2d) 65 (Gen. Div.); Wang v. Byford-Harvey (2012), 2012 ONSC 3030, 110 O.R. (3d) 703, [2012] O.J. No. 2281 (S.C.J.); Duffy v. Gillespie (1997), 1997 16236 (ON SC), 36 O.R. (3d) 443, [1997] O.J. No. 5008 (Div. Ct.).

[^28]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7.

[^29]: Unwin v. Crothers (2005), 2005 23337 (ON SC), 76 O.R. (3d) 453, [2005] O.J. No. 2797 (S.C.J.), per Spies J.

[^30]: Family Law Rules, O. Reg. 114/99, rule 12(5) and (6).

[^31]: Schulman v. Ganz, [2015] O.J. No. 2665, 2015 ONSC 3254 (S.C.J.), paras. 8-45.

[^32]: See Klasios v. Klasios, 2015 ONSC 1173 (S.C.J.); Grossman v. Grossman, [2014] O.J. No. 6450, 2014 ONSC 2090 (S.C.J.); Balsmeier v. Blasmeier, [2014] O.J. No. 5115, 2014 ONSC 5305 (S.C.J.); Dillon v. Dillon, [2013] O.J. No. 5744, 2013 ONSC 7679 (S.C.J.); Baudanza v. Nicoletti, [2011] O.J. No. 457, 2011 ONSC 352 (S.C.J.), Simioni v. Simioni, 2009 934 (ON SC), [2009] O.J. No. 174, 74 R.F.L. (6th) 202 (S.C.J.), Mantella v. Mantella (2006), 2006 10526 (ON SC), 80 O.R. (3d) 270, [2006] O.J. No. 1337, 267 D.L.R. (4th) 532, 27 R.F.L. (6th) 57 (S.C.J.); Marton v. Marton, [1988] O.J. No. 1358 (H.C.J.); Johnson v. Johnson, 1986 6256 (ON SC), [1986] O.J. No. 2506, 8 C.P.C. (2d) 243 (H.C.J.). For cases refusing separate trials, but not on the basis that the circumstances do not meet the common law test for separate trials, see G. (C.M.) v. G. (R.), [2013] O.J. No. 589, 2013 CarswellOnt 1461 (S.C.J.) and Hall v. Sabri, [2011] O.J. No. 4850, 2011 ONSC 6342 (S.C.J.).

[^33]: See, for example, Central Sun Mining v. Vector Engineering Inc. (2015), 23 C.P.C. (3d) 629 (Ont. S.C.J.); Vachon v. 1307839 Ontario Ltd., [2013] O.J. No. 5761, 2013 ONSC 7180 (S.C.J.); Karbasian v. Batorowicz, [2015] O.J. No. 5446, 2015 ONSC 6502 (S.C.J.): all recent cases where bifurcation was denied, not because of lack of jurisdiction, but because the moving party had not met the high test for such an order.

[^34]: Honourable Coulter A. Osborne, Civil Justice Reform Project -- Summary Findings & Recommendations (Toronto: Ministry of the Attorney General, 2007).

[^35]: Ibid, pp. 100-101.

[^36]: Hryniak v. Mauldin, supra, note 28, paras. 1-3.

[^37]: Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.), paras. 32-34 (footnotes omitted).

[^38]: Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 5815, 2014 ONCA 878 (C.A.), leave to appeal to S.C.C. refused [2015] S.C.C.A. No. 97, 2015 39803.

[^39]: Fehr v. Sun Life Assurance Co. of Canada, [2015] O.J. No. 5891, 2015 ONSC 6931 (S.C.J.); Canada Mortgage and Housing Corp. v. Greenspoon, [2015] O.J. No. 5831, 2015 ONSC 6882 (S.C.J.); Tetreault v. Nussbaum, [2015] O.J. No. 5221, 2015 ONSC 6226 (S.C.J.); Jeliazov v. John Doe, [2015] O.J. No. 4988, 2015 ONSC 5856 (S.C.J.); Toronto-Dominion Bank v. Jolly, [2015] O.J. No. 4914, 2015 ONSC 5886 (S.C.J.); Munas v. Yusuf (2015), 127 O.R. (3d0 457, [2015] O.J. No. 4725, 2015 ONSC 5443 (S.C.J.); Martin v. Attard Plumbing Ltd., [2015] O.J. No. 4250, 2015 ONSC 5037 (S.C.J.); Bayer Inc. v. Belfield Investment Corp., [2015] O.J. No. 4238, 2015 ONSC 5029 (S.C.J.); Sutton v. Balinsky, [2015] O.J. No. 3935, 2015 ONSC 3081 (S.C.J.); Gauthier v. Lahey, [2015] O.J. No. 3896, 2015 ONSC 4696 (S.C.J.); R & G Draper Farms (Keswick) Ltd. v. Nature's Finest Produce Ltd., [2015] O.J. No. 3844, 2015 ONSC 4620 (S.C.J.); F. v. Greater Sudbury (City) Police Service, [2015] O.J. No. 3797, 2015 ONSC 3937 (S.C.J.); Barsheshet v. Aviva Canada Inc., [2015] O.J. No. 3629, 2015 ONSC 4439 (S.C.J.); Cloutier v. Q Residential LP Corp., [2015] O.J. No. 5601, 2015 ONSC 4431 (S.C.J.); Empire Communities v. Ontario, [2015] O.J. No. 3574, 2015 ONSC 4355 (S.C.J.); Brown v. Belair, [2015] O.J. No. 3537, 2015 ONSC 4231 (S.C.J.); Rahimi v. Hatami, [2015] O.J. No. 3479, 2015 ONSC 4266 (S.C.J.); 2313103 Ontario Inc. v. JM Food Services Ltd., [2015] O.J. No. 3239, 2015 ONSC 4029 (S.C.J.); MSI Spergel v. X-Act Systems Inc., [2015] O.J. No. 2929, 2015 ONSC 3692 (S.C.J.); Cross Bridges Inc. v. Z-Teca Foods Inc., [2015] O.J. No. 2022, 2015 ONSC 2632 (S.C.J.); Business Development Insurance Ltd. v. Caledon Mayfield Estates Inc., [2015] O.J. No. 1527, 2015 ONSC 1978 (S.C.J.); EFI Technologies Ltd. v. Silani Sweet Cheese Ltd., [2015] O.J. No. 1222, 2015 ONSC 789 (S.C.J.); Miaskowski v. Persaud, [2015] O.J. No. 1208, 2015 ONSC 1654 (S.C.J.); Guertin v. Legault, [2015] O.J. No. 1181, 2015 ONSC 1391 (S.C.J.); Loreto v. Romano, [2015] O.J. No. 799, 2015 ONSC 898 (S.C.J.); Nemeth v. Yasin, [2015] O.J. No. 347, 2015 ONSC 558 (S.C.J.); Vynckier v. Brown, [2015] O.J. No. 4520, 2015 ONSC 376 (S.C.J.); Nguyen v. SSQ Life Insurance Co. Inc., [2014] O.J. No. 5253, 2014 ONSC 6405 (S.C.J.); Fernandes v. Araujo (2014), 123 O.R. (3d) 294, 2014 ONSC 6432 (S.C.J.); France v. Kumon Canada Inc., [2014] O.J. No. 5795, 2014 ONSC 5890 (S.C.J.); Landrie v. Congregation of the Most Holy Redeemer (2014), 120 O.R. (3d) 768, [2014] O.J. No. 3132, 2014 ONSC 4008 (S.C.J.); Beatty v. Best Theratronics Ltd., [2014] O.J. No. 2991, 2014 ONSC 3376 (S.C.J.).

[^40]: O. Reg. 438/08, s. 13(1) to (3).

[^41]: O. Reg. 438/08, s. 14.

[^42]: O. Reg. 438/08, s. 2.

[^43]: Dickson v. Di Michele, [2014] O.J. No. 1925, 2014 ONSC 2513 (S.C.J.).