Ross Earnshaw

The plaintiff municipality moved to bifurcate a tort action alleging misfeasance in public office arising from a federal environmental assessment order affecting a highway project.

The court held that Rule 6.1.01 permits bifurcation only with the consent of the parties and therefore ousted jurisdiction to order separate liability and damages hearings over objection.

In any event, applying pre-rule bifurcation principles and the Air Canada factors, the court found the liability and damages issues were intertwined because proof of misfeasance required proof of resulting harm.

The motion was dismissed.

On a defence motion in a municipal misfeasance in public office action arising from a federal environmental assessment of a highway project, the court granted leave to conduct discovery of the plaintiff by both written interrogatories and oral examination under Rule 31.02.

The court held that the plaintiff's particulars were largely a regurgitation of the pleadings and that, given the breadth of allegations against numerous individual defendants, written interrogatories would efficiently clarify the specific bad faith and illegality allegations made against each defendant.

The court rejected the plaintiff's fairness objections and accepted that a combined process could reduce duplication, narrow oral discovery, and move the long-delayed action toward trial.

Costs were left for written submissions.

The appellant appealed a trial judge's finding that the respondent did not engage in fraudulent concealment when it failed to distribute estate assets upon the death of a life tenant.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that unconscionable conduct by the respondent was essential to the claim and had not been established.

The court noted the appellant knew of her entitlement in 1978 and could have discovered the estate assets with reasonable efforts.