Duggan, Minor by his Litigation Guardian Knight et al. v. Durham Region Non-Profit Housing Corporation

[Indexed as: Duggan (Litigation Guardian of) v. Durham Region Non-Profit Housing Corp.]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Ellies, Sachs and Thorburn JJ.

June 4, 2019

146 O.R. (3d) 196 | 2019 ONSC 3445

Case Summary

Civil procedure — Trial — Bifurcation — Court having jurisdiction to order bifurcation of non-jury trial without consent of parties.

The plaintiffs commenced an action in 2012 for damages arising from a skull fracture and closed head injury sustained by the infant plaintiff in 2010. In 2017, the plaintiffs brought a motion to extend the time to set the action down for a non-jury trial as the extent of the infant plaintiff's damages could not be accurately addressed for several years. The defendant opposed the motion and brought a cross-motion for bifurcation of the trial on the issues of liability and damages. The plaintiffs objected to bifurcation. The master granted their request for an extension of time to assess damages, and also granted the defendant's request to bifurcate the trial. The plaintiffs appealed, arguing that rule 6.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 did not permit the court to make an order for bifurcation in a non-jury trial without their consent. The appeal was dismissed. The plaintiffs appealed.

Held, the appeal should be dismissed.

Per Thorburn J. (Sachs J. concurring): The court has jurisdiction to order the bifurcation of a non-jury trial without the consent of a party or parties. The intended purpose of Rule 6.1.01 was to allow bifurcation in jury trials only with the consent of all parties, but the rule did not abolish the court's long-established jurisdiction to bifurcate non-jury trials in exceptional cases even without the consent of the parties. This was such an exceptional case. Liability could and should be determined without delay so that elderly witnesses with health issues would be able to testify on important issues. At the same time, damages could and should be addressed once there was sufficient evidence to understand and appreciate the magnitude of the damages suffered by the infant plaintiff.

Per Ellies J. (dissenting): While bifurcating the trial in this case was the right thing to do, the court did not have the power to do it. Prior to the enactment of [page197] rule 6.1.01, the court had the jurisdiction to bifurcate a jury trial with the consent of the parties. Therefore, the purpose of rule 6.1.01 could not have been to expand the court's jurisdiction to allow it to bifurcate jury trials on consent. Rather, its purpose was to restrict the power of the court to bifurcate non-jury trials without consent.

Bondy-Rafael v. Potrebic (2015), 128 O.R. (3d) 767, [2015] O.J. No. 6321, 2015 ONSC 3655, [2016] I.L.R. ÂM-2881, 92 M.V.R. (6th) 217, 261 A.C.W.S. (3d) 309 (Div. Ct.); Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 366 D.L.R. (4th) 641, 453 N.R. 51, J.E. 2014-162, 314 O.A.C. 1, 21 B.L.R. (5th) 248, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 46 C.P.C. (7th) 217, 95 E.T.R. (3d) 1, 37 R.P.R. (5th) 1, EYB 2014-231951, 2014EXP-319, consd

Other cases referred to

Campbell v. Campbell, [2017] O.J. No. 1682, 2017 ONSC 2139, 278 A.C.W.S. (3d) 282, 27 E.T.R. (4th) 118 (S.C.J.); Duggan (Litigation guardian of) v. Durham Region Non-Profit Housing Corp., [2018] O.J. No. 1957, 2018 ONSC 1811, 21 C.P.C. (8th) 405, 291 A.C.W.S. (3d) 281 (S.C.J.), affg [2017] O.J. No. 4468, 2017 ONSC 4875 (Master); Duffy v. Gillespie (1997), 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, 1997 16236 (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.); 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, 2002 DFQ Â10,056; Kovach v. Kovach, 2008 37213 (Ont. Div. Ct.); 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; 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; Shepley v. Libby McNeil & Libby of Canada Ltd. (1979), 23 O.R. (2d) 354, [1979] O.J. No. 4066, 9 C.P.C. 201, [1979] 1 A.C.W.S. 123, 1979 1971 (Div. Ct.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 19(1) (b), 138

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 6.1.01, 20

APPEAL from an order affirming an order of a master bifurcating a non-jury trial.

Thomas Hanrahan, Meredith Harper and Patrick Baker, for appellants (plaintiffs).

David Boghosian, for respondent Durham Region Non-Profit Housing Corporation.

THORBURN J. (SACHS J. concurring): —

Overview

[1] This appeal concerns the interpretation of the bifurcation provision set out in rule 6.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "rule") as it applies to non-jury trials. [page198]

[2] The appellant, Gavin Duggan ("Gavin"), is a minor represented by his litigation guardians (the plaintiffs in this action). In September 2010, when Gavin was aged four, he suffered a skull fracture and a closed head injury after opening what is alleged to be a defective sliding door on the balcony of a rental unit and falling ten to 15 feet to the ground.

[3] An action was commenced in 2012. The parties agree this action will proceed by way of a non-jury trial.

[4] On May 8, 2017, the appellants brought a motion seeking to extend the time to set the action down for a non-jury trial from March 21, 2017 to March 21, 2020 as the extent of Gavin's damages could not be accurately addressed for several years. The respondent opposed the motion and, in the alternative, brought a cross-motion seeking bifurcation of the trial on the issues of liability and damages.

[5] Master Short granted the appellants' request to extend the time to assess damages, but also granted the respondent's request to bifurcate this non-jury trial and separate liability from damages over the appellants' objections.

[6] He did so because

(a) he had concerns about adjourning the issue of liability given the age, health and memory of the retired lay witness to testify regarding liability;

(b) he felt it was in the interests of justice to delay the damages issue as more time was needed to assess the long-term effects of Gavin's injuries; and

(c) he was of the view that the issue of liability was discrete from the issue of damages.

[7] The appellants appealed Master Short's decision on the basis that rule 6.1.01 does not permit the court to make an order for bifurcation in this non-jury trial without consent of the appellants. Alternatively, if Master Short had jurisdiction, the appellants argued that the evidence in support of bifurcation was not adequate.

[8] Master Short's decision [[2017] O.J. No. 4468, 2017 ONSC 4875 (Master)] was upheld by J. Wilson J. on April 4, 2018 [[2018] O.J. No. 1957, 2018 ONSC 1811 (S.C.J.)].

[9] J. Wilson J. held that Master Short had jurisdiction to order bifurcation of this non-jury trial without consent of the parties as the court has inherent jurisdiction in the exceptional circumstances of this case. She further held that there was adequate evidence of exceptional circumstances warranting bifurcation as follows: [page199]

(a) the issue of liability is discrete and is ready to proceed;

(b) there are concerns regarding the age, health, and memory of the retired liability lay witness if the liability issue is delayed; and

(c) the issue of damages and Gavin's support/treatment will be much easier to resolve once liability is determined.

[10] The appellants on this appeal seek an order setting aside the bifurcation of the trial on the basis that J. Wilson J. erred in finding that the court could exercise its inherent jurisdiction to order bifurcation of the trial over the appellants' objection.

The Issue

[11] The legal issue to be determined is whether this court has inherent jurisdiction to order bifurcation in non-jury trials without the consent of the appellants. This entails an interpretation of rule 6.1.01.

The Court's Jurisdiction

[12] An appeal lies to the Divisional Court from an interlocutory order of a judge of the Superior Court of Justice, with leave: See s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[13] On October 11, 2018, this court granted leave to appeal on the issue of whether the court has the jurisdiction to bifurcate the issues of liability and damages in a non-jury trial over the objection of a party.

Standard of Review

[14] The standard of review for the appeal of a question of law is correctness: See Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33.

Analysis of the Law and Conclusion

The regulatory and legislative provisions

[15] Rule 6.1.01 of the Rules of Civil Procedureprovides 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.

[16] Rule 1.04 provides that"These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits." [page200]

[17] Section 138 of the Courts of Justice Act provides that "as far as possible, multiplicity of legal proceedings shall be avoided".

The court's inherent jurisdiction to order bifurcation in non-jury trials

[18] It is agreed that prior to the enactment of rule 6.1.01, the court had inherent jurisdiction to order bifurcation of issues in non-jury trials in exceptional cases where it was in the interest of justice to do so: see 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.), at p. 5. In that case, Morden J.A. for the court held that:

The fact that the power to split a trial is not expressly conferred does not, of course, mean that it may not be part of the inherent jurisdiction of the court and we accept that it exists on this basis, to be exercised in the interest of justice. . . .

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.

[19] Morden J.A. noted however that"It has been held that the power may not be exercised where one of the parties has served a jury notice" (emphasis added).

[20] Morden J.A. cited the case of Shepley v. Libby McNeil & Libby of Canada Ltd. (1979), 23 O.R. (2d) 354, [1979] O.J. No. 4066, 1979 1971, 9 C.P.C. 201 (Div. Ct.), where the court held that [at paras. 1 and 5]"The plaintiff has served a jury notice which has not been struck out . . . [the motion judge] 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 court accepted that there is no jurisdiction in the court to order the trial of an issue either under the Rules of Practice or its inherent jurisdiction; and that in any event the court ought not to have made the order because it thereby deprives the plaintiff of his right to have that issue tried by a jury which right became absolute once he filed the jury notice.

[21] Similarly, in Duffy v. Gillespie (1997), 36 O.R. (3d) 443, [1997] O.J. No. 5008, 1997 16236 (Div. Ct.) the court rejected the possibility of a split trial based on the fact that a jury notice had been served. The Court of Appeal decision in Elcano and the earlier Divisional Court decision in Shepley were cited as authority for that proposition.

[22] More recently, in Kovach v. Kovach, 2008 37213 (Ont. Div. Ct.), Lax J. held as follows [at para. 13]:

On my reading of Carreiro, the Divisional Court has said that under the current state of the law, jury trials may not be bifurcated. It has also said that [page201] the bifurcation of jury trials represents the development of "new law": Carreiro at para. 12. There are now several decisions of lower courts, including the case at bar that have adopted the "new law", but no appellate court has done so and there are appellate authorities that have not been overruled and stand for the principle that a jury trial may not be bifurcated. Bifurcation of jury trials has broad significance affecting the rights of litigants to have all issues heard in one proceeding. This is an important issue that again warrants the attention of the Divisional Court.

[23] This line of reasoning was again followed by the Court of Appeal in Kovach (Litigation guardian of) v. Kovach (2010), 100 O.R. (3d) 608, [2010] O.J. No. 643, 2010 ONCA 126. In Kovach, Blair J.A. addressed the issue of whether [at paras. 1 and 2] "the Superior Court of Justice ha[s] 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". He held that"For quite some time now, it has been accepted that the answer in Ontario was 'no'."

[24] For these reasons, we find that prior to the enactment of rule 6.1.01, there was no inherent jurisdiction to order bifurcation in jury trials.

The effect of rule 6.1.01

[25] We agree with the respondent that the general wording in rule 6.1.01 broadened the permitted scope of bifurcation. Bifurcation is now allowed in the case not only of non-jury but also of jury trials, with the consent of the parties.

[26] In Bondy-Rafael v. Potrebic (2015), 128 O.R. (3d) 767, [2015] O.J. No. 6321, 2015 ONSC 3655 (Div. Ct.), the Divisional Court addressed the interpretation of rule 6.1.01 in the context of a jury trial. It held that the court now has jurisdiction to order the bifurcation of a jury trial, but only on the consent of all parties.

[27] The court in Bondy went on to consider the intended meaning of rule 6.1.01 as it relates to non-jury cases. This was not necessary as the case before the court was a jury trial, not a non-jury trial. As such, it is obiter dicta and is not binding.

[28] Although the discussion in respect of non-jury trials was obiter, Molloy J. for the majority, concluded that rule 6.1.01 "fully occupied the field" thereby abolishing the established inherent jurisdiction with respect to non-jury trials. She also held that the rule was clear and unambiguous (see para. 26) and that, on either basis, the court had no power to bifurcate without consent.

[29] Corbett J. disagreed. He held that the intended purpose of the rule was to allow bifurcation in jury trials only with consent of all parties, but that the rule did not abolish the court's long- established jurisdiction to bifurcate non-jury trials in exceptional cases even without the consent of the parties. [page202]

[30] We agree with Corbett J.'s interpretation in Bondy.

[31] Just because the Rules Committee has legislated on a topic does not mean that it has "occupied the field".

[32] As already noted, prior to the passage of rule 6.1.01, the court had inherent jurisdiction to bifurcate in non-jury cases only. There was no such pre-existing right in jury trials. To oust the pre-existing and inherent jurisdiction of the court in non-jury trials requires statutory language that is "clear and precise" (R. v. Rose (1998), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 1998 768, at para. 33). Absent clear language, the court retains its inherent jurisdiction to determine whether bifurcation should be granted, irrespective of whether the parties consent.

[33] Moreover, rule 6.1.01 is permissive, not mandatory. There is no clear wording to prohibit the court from bifurcating a non-jury proceeding that it had the right to do in limited circumstances, prior to the enactment of the rule. Rule 6.1.01 does not say that in all cases, bifurcation can only be granted on the consent of the parties. The rule simply provides that the court "may order a separate hearing".

[34] The effect of rule 6.1.01 is to enable the court the flexibility to bifurcate in jury trials in limited exceptional circumstances where the interests of justice warrant and where the parties consent. This was noted in obiter by Blair J.A. in Kovach (Litigation guardian of) v. Kovach (2010), 100 O.R. (3d) 608, [2010] O.J. No. 643, 2010 ONCA 126 where he stated that [at para. 34]:

The new rule may well permit the bifurcation of issues of fact or of mixed fact and law even when a jury notice has been filed, where the parties consent, thus surmounting the jurisdictional impediments previously in place.

(Emphasis added)

[35] This interpretation of rule 6.1.01 is consistent with the decision in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, that [at para. 28] "the process [of adjudicating disputes] is illusory unless it is also accessible - proportionate, timely and affordable" and with rule 1.04 that the rules should be interpreted "liberally".

[36] As to the intention of the legislators, the respondent refers to the decision of Campbell v. Campbell, [2017] O.J. No. 1682, 2017 ONSC 2139 (S.C.J.) wherein MacLeod J. stated [at para. 42]:

I was a participant in all of the deliberations of the Rules Committee considering the recommendations of the Osborne Report. I am certain that it was never the intent of the Committee to "occupy the field" or to restrict the inherent jurisdiction of the Court. [page203]

[37] The respondent submits that this is consistent with J. Wilson J.'s finding that the intended purpose of rule 6.1.01 was to modestly expand the jurisdiction of the court to allow for bifurcation in jury trials with consent of the parties.

Conclusion

[38] A plaintiff has a presumptive right to have all issues dealt with in a single trial. However, this right is not absolute and bifurcation of issues may be necessary and in the interests of justice in limited and exceptional cases.

[39] Rule 6.1.01 enables the court to bifurcate a jury trial where the interests of justice dictate and on the consent of the parties, a right unavailable to the court prior to the enactment of the rule.

[40] For the above reasons, in exceptional cases, the court should not be restricted from exercising its inherent jurisdiction in a non-jury case because one party refuses to consent.

[41] In our view, this is just such a case: liability can and should be determined without delay so that elderly witness(es) with health issues are able to testify on important issues. At the same time, damages can and should be addressed once there is sufficient evidence to understand and appreciate the magnitude of the damages suffered by Gavin. It is also possible that there may not need to be a trial on damages once liability is determined. If liability is determined in favour of the defendant, this may end the matter. If liability is determined in favour of the plaintiff, or split, and the damages can be quantified, the action may settle.

[42] For these reasons, the appeal is dismissed.

[43] As agreed by the parties, costs to the respondent in the amount of $6,000.

[44] ELLIES R.S.J. (dissenting): -- While I agree with my colleagues that bifurcating the trial in this case is the right thing to do, respectfully, I do not agree that we have the right to do it.

[45] Obiter or not, I agree with the reasons of Molloy J. on behalf of the majority in Bondy-Rafael [v. Potrebic (2015), 128 O.R. (3d) 767, [2015] O.J. No. 6321, 2015 ONSC 3655 (Div. Ct.)]. Not only did she hold that the legislature had fully occupied the field with the enactment of rule 6.1.01 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], as Thorburn J. mentions, but Molloy J. also held that the language of the rule was "clear and unambiguous" (para. 26). An appeal from the decision to the Ontario Court of Appeal was refused: March 30, 2016 (M45885).

[46] At para. 23, above, my colleague refers to the decision of Blair J.A. in Kovach [(Litigation guardian of) v. Kovach (2010), 2010 ONCA 126, 100 O.R. (3d) 608, [page204] [2010] O.J. No. 643, 2010 ONCA 126] in support of her conclusion that rule 6.1.01 permits the bifurcation of non-jury trials without the consent of the parties. For ease of reference, I will set out the relevant paragraph from Kovach again [at para. 34]:

The new rule may well permit the bifurcation of issues of fact or of mixed fact and law even when a jury notice has been filed, where the parties consent, thus surmounting the jurisdictional impediments previously in place.

[Emphasis in original]

[47] The difficulty I have is that, with great respect, I do not believe that there was ever any jurisdictional impediment to bifurcating a jury trial before the enactment of rule 6.1.01, where the parties consented. I do not interpret any of the cases referred to by my colleague as standing for that proposition.

[48] 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.)], the trial judge decided of his own motion to bifurcate the issues of liability and damages "against the firm objection of counsel for the defendants" (p. 57 O.R.). In Shepley [v. Libby McNeil & Libby of Canada Ltd. (1979), 23 O.R. (2d) 354, [1979] O.J. No. 4066, 1979 1971, 9 C.P.C. 201 (Div. Ct.)], the plaintiff appealed the decision of the motion judge who had directed a trial of the limitation period issue. Had the plaintiff consented to such an order, one would have expected to have seen some mention of that fact in the Divisional Court's decision. However, none was made. Instead, Henry J., speaking for the court, said (p. 355 O.R.):

. . . the Court ought not to have made the order because it thereby deprives the plaintiff of his right to that issue tried by a jury . . .

I doubt that Henry J. would have used such language if the plaintiff had consented to bifurcation.

[49] Thus, prior to the enactment of rule 6.1.01, the court had the jurisdiction to bifurcate a jury trial with the consent of the parties. Therefore, the purpose of rule 6.1.01 could not have been to expand the court's jurisdiction to allow it to bifurcate jury trials on consent. If the purpose of rule 6.1.01 was not to expand the power to bifurcate jury trials on consent, then what was its purpose? I can think of only one: to restrict the power of the court to bifurcate non-jury trials without consent. On a plain reading of the rule, that is precisely what it does. I believe this interpretation of rule 6.1.01 is, in fact, borne out in the cases upon which my colleagues rely for the opposite proposition.

[50] As Thorburn J. points out, in Kovach, Blair J.A. addressed the issue of whether [at para. 1] "the Superior Court of Justice [page205] ha[s] 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" [emphasis added]. A close reading of the decision reveals that it supports a restrictive, not an expansive, interpretation of rule 6.1.01, when it comes to non-jury trials. This becomes obvious when the excerpt relied upon by my colleagues is put into context by setting out the preceding part of the paragraph (para. 23) [Kovach, at para. 33]:

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.

(Emphasis added)

[51] My colleagues also base their decision, in part, on what the rule does not say. I do not find that to be a particularly compelling consideration. The rule does not say many things. What it does say, however, is quite clear. If necessary, I would point out that the rule also does not say". . . even in matters to be tried with a jury". If the purpose of the rule was to expand the power of the court beyond what it was prior to its enactment to permit the court to bifurcate jury trials with the consent of the parties, one might expect to see this language in the rule.

[52] My colleagues also refer to the decision of MacLeod J. in Campbell v. Campbell, [[2017] O.J. No. 1682, 2017 ONSC 2139 (S.C.J.)]. With respect, I do not think it is helpful to rely on the evidence of a judge with respect to the intentions of an entire group of people such as the Rules Committee, even a judge as respected in the area of civil procedure as MacLeod J.

[53] Finally, I see no conflict between the interpretation given to rule 6.1.01 by the majority in Bondy-Rafael and the decision of the Supreme Court in Hyrniak [v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7]. Hryniak dealt with summary judgment under Rule 20. That rule empowers the court to dispose of issues that do not require a trial in front of any jury. In my view, that is a completely different situation than one in which a party seeks to deal with different issues in front of different juries.

[54] For these reasons, I would allow the appeal and quash the order of Master Short.

Appeal dismissed.

End of Document