Kovach et al., Minors by their Litigation Guardian Kovach et al. v. Kovach et al.

[Indexed as: Kovach (Litigation Guardian of) v. Kovach]

100 O.R. (3d) 608

2010 ONCA 126

Court of Appeal for Ontario,

Goudge, MacPherson and Blair JJ.A.

February 18, 2010

Civil procedure -- Trial -- Jury trial -- Bifurcation -- Superior Court of Justice not having jurisdiction to bifurcate trial of liability and damages issues where valid jury notice has been served and in absence of consent.

Both the plaintiffs and the defendants in an action arising out of a motor vehicle accident served jury notices. The defendants brought a motion to bifurcate the issues of liability and damages, and to have the trials of those issues dealt with [page609] by different juries. The motion was dismissed on the basis that the Master had no jurisdiction to make such an order absent the consent of the parties. The Master's order was set aside on appeal. The Divisional Court allowed the appeal from that order and restored the Master's order. The defendants appealed.

Held, the appeal should be dismissed.

The Superior Court of Justice does not have jurisdiction to bifurcate the trial of liability and damages issues where there is a valid jury notice in place and in the absence of consent. A litigant has the inherent right to have the issues of fact or of mixed fact and law decided by a jury, except in cases where the right has been taken away by statute. That principle is embodied in s. 108(1) of the Courts of Justice Act, R.S.O. 1990, c. C-43, which states that a party may require the issues to be tried by "a jury". "A" jury should not be interpreted as meaning "any" jury. To interpret s. 108(1) in a fashion that permits the trial of different issues by different juries -- absent consent -- would also be inconsistent with the well- entrenched principle that once a trier of fact is seized of an action, it remains seized of it until judgment is pronounced.

APPEAL from order of the order of Carnwath, Swinton and Bellamy JJ. (2009), 2009 722 (ON SCDC), 95 O.R. (3d) 34, [2009] O.J. No. 150 (Div. Ct.) allowing an appeal from an order setting aside the order of a [page610] Master dismissing a motion to bifurcate the trial of issues of liability and damages.

Cases referred to Carreiro (Litigation Guardian of) v. Flynn, 2005 5850 (ON SCDC), [2005] O.J. No. 877, 195 O.A.C. 315, 137 A.C.W.S. (3d) 932 (Div. Ct.); 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.); 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.); Shepley v. Libby McNeil & Libby of Canada Ltd. (1979), 1979 1971 (ON SC), 23 O.R. (2d) 354, [1979] O.J. No. 4066, 9 C.P.C. 201, [1979] 1 A.C.W.S. 123 (Div. Ct.), apld Ashmore v. Corp. of Lloyd's, [1992] 2 All E.R. 486, [1992] 1 W.L.R. 446 (H.L.); Woodglen & Co. v. Owens, [1995] O.J. No. 1360 (Gen. Div.), consd Other cases referred to Blanchette v. Squires (2009), 2009 43101 (ON SC), 98 O.R. (3d) 474, [2009] O.J. No. 3390, 76 C.C.L.I. (4th) 304 (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.); General Refractories Co. of Canada v. Venturedyne Ltd., [2001] O.J. No. 746, 6 C.P.C. (5th) 329, 103 A.C.W.S. (3d) 947 (S.C.J.); Kovach (Litigation Guardian of) v. Kovach (2008), 2008 20331 (ON SC), 91 O.R. (3d) 553, [2008] O.J. No. 1725, 64 C.P.C. (6th) 120, 167 A.C.W.S. (3d) 281 (S.C.J.); R. v. Breckner, 1983 235 (BC CA), [1983] B.C.J. No. 2337, 6 C.C.C. (3d) 42, 9 W.C.B. 481 (C.A.); Stelco Inc. (Re) (2005), 2005 8671 (ON CA), 75 O.R. (3d) 5, [2005] O.J. No. 1171, 253 D.L.R. (4th) 109, 196 O.A.C. 142, 2 B.L.R. (4th) 238, 9 C.B.R. (5th) 135, 138 A.C.W.S. (3d) 222 (C.A.); The "Leonor" (Re), 1917 976 (FC), [1917] B.C.J. No. 154, [1917] 3 W.W.R. 861 (S.C.); Waller v. Independent Order of Foresters, [1905] O.J. No. 361, 5 O.W.R. 421 (Div. Ct.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 108(1) [as am.], (3), 138 Judicature Act, R.S.O. 1970, c. 228, s. 62(1) [rep. 2006, c. 21, Sch. F, s. 98] Judicature Act, R.S.O. 1980, c. 223, s. 60(1) [rep.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 6.1.01, 77, 77.02

Alan L. Rachlin, for appellants. Kirk F. Stevens, for respondents.

The judgment of the court was delivered by

BLAIR J.A.: -- Introduction

[1] Does the Superior Court of Justice have jurisdiction to bifurcate the trial of liability and damages issues where there is a valid jury notice in place and the parties do not consent? That is the fundamental question raised on this appeal.

[2] For quite some time now, it has been accepted that the answer in Ontario was "no". We are now asked to reconsider, or to re-affirm, that understanding, at least for the period prior to January 1, 2010 -- the effective date of new rule 6.1.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], which 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. Background

The accident

[3] The Kovach plaintiffs and the Linn defendants are parties to an action arising out of a motor vehicle accident that occurred on Halloween in 1999. The action is scheduled to be heard by a jury.

[4] Pauline Kovach was out "trick or treating" that evening with her two children, Andrew and Sarah, and two of her nephews. She reversed her van out of a private driveway onto a public road, where her van collided with a pickup truck operated by Mackenzie Linn and owned by Barry Linn.

[5] Although there were other injuries, Andrew -- eight years old at the time -- suffered a serious brain injury and pelvic fractures in the crash. The parties agree that his impairments are "catastrophic".

[6] As it happens, Aviva Canada Inc. insured both the Kovach and Linn vehicles under separate and unrelated policies. Each policy has third-party liability limits of $1 million. It is quite likely that Andrew's damages, if the plaintiffs are successful, will exceed the limits of both policies. His claim is for $11.5 million. If [page611] the Linn defendants are found to be even 1 per cent liable, he will have access to coverage under both policies.

[7] Both the Kovach plaintiffs and the Linn defendants have served jury notices. The Linn defendants seek to have the trial of the liability and damages issues bifurcated, however. They propose that the trials of these issues be dealt with by different juries.

The proceedings

[8] On November 26, 2007, Master Egan dismissed the Linns' motion to bifurcate the action. She held that she was bound by the decisions of the Divisional Court in Duffy v. Gillespie (1997), 1997 16236 (ON SC), 36 O.R. (3d) 443, [1997] O.J. No. 5008 (Div. Ct.) and Carreiro (Litigation Guardian of) v. Flynn,, 2005 5850 (ON SCDC), [2005] O.J. No. 877, 195 O.A.C. 315 (Div. Ct.) and had no jurisdiction to make such an order absent the consent of the parties. Those decisions, in turn, relied upon the authority of this court in 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.) and on another decision of the Divisional Court in Shepley v. Libby McNeil & Libby of Canada Ltd. (1979), 1979 1971 (ON SC), 23 O.R. (2d) 354, [1979] O.J. No. 4066 (Div. Ct.).

[9] I will return to a discussion of these authorities later in these reasons.

[10] Master Egan did not consider whether, if there were jurisdiction, bifurcation would have been appropriate in the circumstances of this case.

[11] On May 2, 2008, Justice Chapnik set aside the order of Master Egan [(2008), 2008 20331 (ON SC), 91 O.R. (3d) 553, [2008] O.J. No. 1725 (S.C.J.)]. She concluded that, on a close reading, Shepley did not stand for the proposition that the court lacks jurisdiction to bifurcate a trial where one party has served a jury notice, absent consent, and that the reference to Shepley in Elcano was obiter. Relying on the court's inherent jurisdiction to control its own process and the purposive direction in case management rule 77.02 encouraging expeditious and less costly proceedings, she was satisfied that the Master had jurisdiction to make such an order. [See Note 1 below]

[12] Chapnik J. was also satisfied that bifurcation was appropriate on the facts of this case because the liability issue was completely distinct from the damages issues, which were more [page612] complex. As well, a finding in the Linns' favour would render the damages trial unnecessary. She therefore concluded that the moving parties had met the onus of establishing a "clear benefit in terms of time and expense", shifting the onus of showing a "real prejudice" outweighing the expediency of bifurcation to the Kovaches, which they had not done: see General Refractories Co. of Canada v. Venturedyne Ltd., [2001] O.J. No. 746, 6 C.P.C. (5th) 329 (S.C.J.) and Bourne v. Saunby, [1993] O.J. No. 2606, 23 C.P.C. (3d) 333 (Gen. Div.).

[13] Lax J. granted leave to appeal and, on January 15, 2009, the Divisional Court (Carnwath, Swinton and Bellamy JJ.) allowed the appeal, set aside the order of Chapnik J. and restored the order of Master Egan. The court held that the Master was correct in concluding that she was bound by the decisions in Duffy and Carreiro and that there was no good reason to depart from the decision of other panels of the Divisional Court: the law in Ontario is that a jury trial cannot be bifurcated if one party objects. The court also concluded that Chapnik J. had applied an incorrect test in evaluating the appropriateness of bifurcation on the facts. The power to bifurcate is a "narrowly circumscribed power" to be exercised only in the "clearest cases". This was not one of those exceptional cases.

[14] On April 23, 2009, this court granted leave to appeal from the decision of the Divisional Court. Analysis

Jurisdiction to bifurcate an action where a jury notice has been served

[15] Prior to January 1, 2010, neither the Courts of Justice Act, R.S.O. 1990, c. C.43, nor the Rules of Civil Procedure expressly conferred the power to bifurcate a civil trial. As Justice Morden noted, at p. 59 O.R. in Elcano, however, this fact "does not . . . mean that [the power to bifurcate] may not be part of the inherent jurisdiction of the court". Indeed, as he said, the jurisprudence accepts that the power exists on this basis, to be exercised with caution, but in the interests of justice. But he added a clarification -- the statement that underlies the debate on this appeal:

It has been held that the power may not be exercised where one of the parties has served a jury notice: Shepley v. Libby McNeil & Libby of Canada Ltd; Clifford McKenzie et al., Third Parties (1979), 1979 1971 (ON SC), 23 O.R. (2d) 354, 9 C.P.C. 201.

[16] Rightly or wrongly, jury cases have long been considered to provide an exception to the court's power to split a trial based on its inherent jurisdiction. The power was not to be exercised in [page613] such cases. On behalf of the appellants, Mr. Rachlin argues that the jurisprudence on which this principle is based has been misunderstood and misapplied, and that it does not support the jury exception proposition. Moreover, he submits, Justice Morden's exclusion of jury trials from the reach of inherent jurisdiction in Elcano -- based on Shepley -- was obiter dicta, and is therefore not binding.

[17] I do not accept these submissions.

[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.

[19] Secondly, the Shepley decision does stand for the proposition for which it was cited. At p. 355 O.R., the Divisional Court said:

Assuming, without deciding, that a Judge sitting in Motions Court has the authority under the Rules or the inherent jurisdiction of the Court to direct the trial of this issue at this stage of the proceedings, in our opinion he does not have jurisdiction to sever an issue of fact or mixed fact and law . . . for determination before trial where there is a valid jury notice subsisting. The plaintiff, having properly served the jury notice, has a right which is conferred by s. 62(1) of the Judicature Act, R.S.O. 1970, c. 228 [the old equivalent of what is now s. 108(1) of the Courts of Justice Act] to have all the issues of fact tried by a jury subject only to the jury notice being struck out by a Judge, or subject to the discretion of the Judge at trial (s. 62(3)).

[20] In Shepley, the motion judge relied on the inherent jurisdiction of the court to sever a limitation issue for determination prior to the pending jury trial. For the reasons outlined above, the Divisional Court held that he could not. Mr. Rachlin contends that Shepley does not stand for the proposition that a jury matter may never be severed, but rather for the proposition that bifurcation is inappropriate where the result will deprive a party of the right to have all issues raised determined by a jury (the plaintiff in Shepley had been deprived of his right to have the limitation issue decided by a jury). Here, the appellants argue, they do not seek to deny the respondents of the right to trial by jury; at most, the order sought would require separate trials of liability and damages by different juries.

[21] Shepley may indeed stand for the proposition that it is inappropriate to split a trial where a party will be deprived of [page614] the right to have factual issues determined by a jury. However, the ratio of the case is that the court lacks jurisdiction to do so in a jury case. The plaintiff in Shepley [at p. 355 O.R.] argued in the alternative that, if it had the jurisdiction to do so, "the Court ought not to have made the order because it thereby deprive[d] the plaintiff of his right to have that issue tried by a jury . . ." (emphasis added). Thus, the argument only arose in that case if the court decided there was jurisdiction to make the bifurcation order in the first place.

[22] Shepley is the lynchpin in the appellants' analysis because the attempt to undermine the authority of Elcano -- and of Duffy and Carreiro in the Divisional Court, which are both founded on Elcano and Shepley -- depends upon the conclusion that Shepley has been misunderstood and misapplied. But it has not been misunderstood and misapplied, in my view. Given the foregoing analysis, the appellants' attempts to distinguish the line of jurisprudence upholding the proposition that jury trials may not be split, in the absence of consent, fall away.

[23] There is a further basis upon which the appellants' position founders.

[24] It is a well-entrenched principle in Ontario that a litigant has the inherent right to have the issues of fact or of mixed fact and law decided by a jury (except in cases where the right has been taken away by statute). This principle is embodied in s. 108(1) of the Courts of Justice Act, which states:

108(1) In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried or the damages assessed, or both, by a jury, unless otherwise provided.

[25] The language of s. 108(1) provides legislative support for the notion that a party may require the issues to be tried by a single jury, i.e., "by a jury" [emphasis added]. Subsection 108(3) provides an exception to this principle by stipulating that the court may order issues of fact to be tried, or damages assessed, or both, by a judge alone. But -- contrary to the appellants' argument -- s. 108(1) leaves no legislative "gap" to be filled by the exercise of the court's inherent jurisdiction: see Stelco Inc. (Re) (2005), 2005 8671 (ON CA), 75 O.R. (3d) 5, [2005] O.J. No. 1171 (C.A.), at para. 35. This conclusion is reinforced by the decision in Shepley, where, on the basis of the substantially identical predecessor of s. 108(1), [See Note 2 below] the Divisional Court held [at p. 355 O.R.] that there is [page615] "[no] jurisdiction to sever an issue of fact, or mixed fact and law . . . for determination before trial where there is a valid jury notice subsisting".

[26] Moreover, I do not accept the appellants' submission that the word "a" jury in s. 108(1) should be interpreted as "any" jury [emphasis added]. Had the legislature intended such a marked departure from the normal and long-standing practice of trials by "a" judge or "a" jury, it would have said so by using the words "trial by any jury" or, simply, "trial by jury". It did not do so.

[27] To interpret s. 108(1) in a fashion that permits the trial of different issues by different juries -- absent consent -- would also be inconsistent with the well-entrenched principle that once a trier of fact is seized of an action, it remains seized of it until judgment is pronounced. The following passage from the decision of Martin J.P.C. in The "Leonor" (Re), 1917 976 (FC), [1917] B.C.J. No. 154, [1917] 3 W.W.R. 861 (S.C.), at p. 871 W.W.R. -- cited with approval in R. v. Breckner, 1983 235 (BC CA), [1983] B.C.J. No. 2337, 6 C.C.C. (3d) 42 (C.A.), at p. 52 C.C.C. -- captures this principle well:

Once a Judge is so seized of a cause or motion he is the sole and only tribunal which can exercise jurisdiction over it (unless prohibited by a Higher Court) and from the time he takes his seat upon the bench at the beginning of the hearing till he leaves it after judgment is pronounced, no other Judge of co-ordinate jurisdiction can either by physical force or by writing under his hand usurp his functions or eject him from his seat, or constitute another forum to which the parties may lawfully resort, which is simply usurpation and ejection in another form.

[28] Juries are judges of the facts, and the same principle applies once a matter has been submitted to the jury for determination.

[29] Mr. Rachlin asks why in principle, if there is inherent jurisdiction to bifurcate in judge alone cases, or as between a judge and jury, it should be different for jury cases (acknowledging that there may be differences in the factors to be considered in determining whether to bifurcate or not in the different types of cases). He submits that to permit bifurcation of issues into different jury trials -- even with different juries -- does not deprive a litigant of the right to have all issues of fact or of mixed fact and law determined by a jury -- the impediment identified in Shepley. Furthermore, it is consistent with modern principles of case management, as expressed in former rule 77.02, and various judicial pronouncements about the need for courts to control their own processes and the need to conserve scarce public resources: see, for example, Ashmore v. Corp. of Lloyd's, [1992] 2 All E.R. 486, [1992] 1 W.W.R. 446 (H.L.); General Refractories, at paras. 12-13; Woodglen & Co. v. Owens, [1995] O.J. No. 1360 (Gen. Div.), at paras. 10-13. [page616]

[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.

[31] In addition, neither the provisions of former rule 77.02 nor the Ashmore line of jurisprudence assists the appellants in these circumstances.

[32] Rule 77.02 stated:

77.02 The purpose of this Rule is to establish a case management system throughout Ontario that reduces unnecessary cost and delay in civil litigation, facilitates early and fair settlements and brings proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding.

[33] 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 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.

[34] 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.

[35] In Ashmore, Lord Roskill made the following oft-cited remark, at p. 488 All E.R.:

The Court of Appeal appear to have taken the view that the plaintiffs were entitled as of right to have their case tried to conclusion in such manner as [page617] they thought fit and if necessary after all the evidence on both sides had been adduced. With great respect, like my noble and learned friend, I emphatically disagree. In the Commercial Court and indeed in any trial court it is the trial judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial judge in carrying out his duty. Litigants are not entitled to the uncontrolled use of a trial judge's time. Other litigants await their turn. Litigants are only entitled to so much of the trial judge's time as is necessary for the proper determination of the relevant issues.

[36] Without in any way detracting from the force of Lord Roskill's reflections, however, I make the following observations. First, Ashmore was a commercial case and did not involve the question of severing issues in a proceeding (jury or non-jury). Secondly, I agree with the statement of E. Macdonald J. in Woodglen, at para. 11, concerning the Ashmore comment:

Opposite this objective, I am mindful of the very persuasive argument . . . that this objective should not compromise or prejudice either party to the litigation by the making of orders such as the one sought today by the plaintiffs. I agree that, as a general proposition, convenience, the saving of time and the saving of costs for the litigants, as well as for the State, are secondary to the overriding concern that no party should be prejudiced as the result of an order such as the one sought today by the plaintiffs.

[37] The key is prejudice to the rights of a party in the litigation. In the absence of statutory or rules-based authority to do so, there are sound reasons in principle for adopting the view that a court does not have jurisdiction to bifurcate issues in a jury trial -- or, to put it in the words of Justice Morden in Elcano -- "that the power may not be exercised where one of the parties has served a jury notice" [emphasis added].

[38] First, there is the familiar injunction in s. 138 of the Courts of Justice Act that, as far as possible, multiplicity of proceedings is to be avoided. Since they do not want to transgress the right to have one's issues tried by a jury, the appellants assert that the issues in a bifurcated jury trial can be tried by two (or more) juries. Mr. Rachlin was not able to refer us to a single case where that had ever been done, however, and the implications inherent in such an order are disquieting. Multiple appeals in the same action, with the delays and substantial costs accompanying them? Multiple juries, with the possibility of inconsistent findings between them? Questions about two triers of fact being "seized" of the same action? As a practical matter, the ability of a judge at the motion stage to determine whether there will be no overlap on the evidence relating to both liability and damages at trial is something that is almost impossible to predict accurately. The safer approach -- for whi ch the Rules Committee has now opted -- is not to permit bifurcation in jury [page618] cases unless there is consent. Where there is consent, one party freely gives up its right to have the issues tried by a single jury.

[39] Related to these concerns is the long-ago expressed judicial admonition of Meredith C.J. in Waller v. Independent Order of Foresters, [1905] O.J. No. 361, 5 O.W.R. 421 (Div. Ct.), at p. 422 O.W.R., that bears repeating:

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 . . .

[40] This statement was cited with approval in Elcano, at p. 59 O.R., and more recently, it has been reiterated at the trial level by Shaughnessy J. -- a former Regional Senior Justice familiar with the challenges of allocating judicial resources -- in Blanchette v. Squires (2009), 2009 43101 (ON SC), 98 O.R. (3d) 474, [2009] O.J. No. 3390, 76 C.C.L.I. (4th) 304 (S.C.J.), at paras. 23-24.

[41] A number of the considerations I have touched on may not go directly to jurisdiction. They are more clearly tied to the appropriateness of granting a bifurcation order in particular circumstances -- which this court has said in Elcano, at p. 59 O.R., is only to be done "in the clearest cases". Nonetheless, they underscore the rationale behind the interpretation I have given to s. 108(1) above.

[42] The practice in Ontario has long been understood to preclude the bifurcation of trials where a jury notice has been served, in the absence of consent. To reverse that practice, as the appellants seek, would be a major change in the law. In Ontario, it is primarily the role of the Rules Committee to develop new rules respecting the practice and procedure in civil matters. In doing so, it takes into account the needs of the system viewed through the experience of judges and practitioners across the province. Much better that a stark change in practice, such as that proposed by the appellants -- reversing a long-standing and fundamental right to trial by a single jury -- be left to the legislature or the Rules Committee -- a responsibility that the Rules Committee has now fulfilled.

[43] I would not give effect to this ground of appeal.

The appropriate test for bifurcation

[44] In view of my conclusion that the court did not have jurisdiction to order the bifurcated trial of issues sought by the appellants in this case, it is unnecessary to consider whether Chapnik J. erred in applying a "clear benefit of time and expense" test, as opposed to a "clearest of cases" test, and I decline to do so. [page619]

Disposition

[45] For the foregoing reasons, I would dismiss the appeal.

[46] The respondent is entitled to its costs, fixed in the amount of $8,000, inclusive of disbursements and GST.

Appeal dismissed.

Notes

Note 1: Rule 77.02 was amended on January 1, 2010. References to the rule throughout these reasons refer to the old rule 77.02 which was in effect during all of the proceedings under appeal.

Note 2: Judicature Act, R.S.O. 1970, c. 228, s. 62(1); Judicature Act, R.S.O. 1980, c. 223, s. 60(1).