DIV. COURT FILE NO.: 440/04
DATE: 20041015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ASHLEY MARIE CARREIRO, Minor by her Litigation Guardian NANCY CABRAL, NANCY CABRAL and HELDER CARREIRO
Plaintiffs
- and -
STACY A. FLYNN and NEWCOURT FINANCIAL LIMITED
Defendants
- and -
NANCY CABRAL and HELDER CARREIRO
Defendants
(By Counterclaim)
Barry Chobotar for the Plaintif/Responding Party
Michael Chadwick for the Defendant/Moving Party
MOTION HEARD: October 15, 2004
GROUND J.
ORAL REASONS
[1] As indicated, I am unable to conclude that there is good reason to doubt the correctness of Justice Sutherland’s decision that he was bound by the decisions of the Ontario Court of Appeal and the Divisional Court, that the onus of establishing that this is an exceptional case where bifurcation should be ordered had not been met and that, based on the factors to be considered in this case, he would not exercise his discretion to order bifurcation.
[2] With respect to there being conflicting decisions on the matter, it is clear that at least in Morniga v. State Farm [2002] O.J. No. 2094, Justice Campbell ordered bifurcation in the face of an outstanding jury notice although without reference to the earlier higher courts’ decisions stating, without analysis, that bifurcation should not be ordered where there is an outstanding jury notice. I must conclude, however, that the Order made by Justice Campbell in that case conflicts with Justice Sutherland’s conclusion in the case at bar that he was bound by the higher court decisions.
[3] I am also satisfied that it is desirable that leave to appeal should be granted. The issue is clearly of importance to the personal injury bar and, I would suggest,
[4] to the bar as a whole and to the administration of justice.
[5] Justice Sutherland masterfully articulated in his Reasons why it is inappropriate, in the situation currently facing the civil courts in this province, to have an absolute rule prohibiting the bifurcation of trials where there is a jury notice outstanding, particularly when such bifurcation may well shorten the trial considerably, encourage settlement, assist the administration of justice and promote judicial economy.
[6] Leave to appeal is granted. The costs of today’s proceedings are reserved to the panel disposing of the appeal.
Ground J.
Released: October 20, 2004
DIV. COURT FILE NO.: 440/04
DATE: 20041015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ASHLEY MARIE CARREIRO, Minor by her Litigation Guardian NANCY CABRAL, NANCY CABRAL and HELDER CARREIRO
Plaintiffs
- and -
STACY A. FLYNN and NEWCOURT FINANCIAL LIMITED
Defendants
- and -
NANCY CABRAL and HELDER CARREIRO
Defendants
(By Counterclaim)
ORAL REASONS
Ground J.
Released: October 20, 2004