Wang et al. v. Byford-Harvey et al. [Indexed as: Wang v. Byford-Harvey]
110 O.R. (3d) 703
2012 ONSC 3030
Ontario Superior Court of Justice,
R. Smith J.
May 22, 2012
Civil procedure -- Trial -- Bifurcation -- Plaintiff suffering catastrophic injuries in motor vehicle accident -- Plaintiff suing two motorists and City -- City moving for order for separate hearings on issues of liability and damages -- Motion granted -- Issues of liability and damages distinct -- Damages issues more complex than liability issues and probably requiring five-week trial -- Trial on damages unlikely if City were found not liable -- Plaintiff not prejudiced by bifurcation -- Bifurcation likely resulting in saving of time and costs.
The plaintiff suffered catastrophic injuries when he was struck by a motor vehicle driven by the defendant B. B claimed that the primary cause of the accident was the position of a vehicle driven by the defendant R. The plaintiff also sued the defendant City, alleging that the City was aware of complaints about the risk to pedestrians from vehicles travelling above the speed limit at the location of the accident and failed to take adequate traffic-calming measures. The City, supported by the other defendants, brought a motion for an order for separate hearings on the issues of liability and damages. The plaintiff opposed bifurcation.
Held, the motion should be granted.
The issue of the City's liability was not simple. The issue of B's liability was simple, and the issue of R's liability was relatively simple. The damages issues were quite complex and would require more time than the liability issues. The fact that there was no jury made it easier to have separate trials on the issues of liability and damages. A trial on damages would take approximately five weeks. The issue of causation as it related to liability was entirely unrelated to any questions with respect to the plaintiff's damages. The trial judge would have no better appreciation of the plaintiff's injuries from having the issues of liability and damages tried together. The issues of liability and damages were distinct. In the event that the City and R were found not liable, it was highly unlikely that there would be a trial on damages, and if the City were found not liable and R were found liable, it was still unlikely that there would be a damages trial. The plaintiff would suffer minimal prejudice from bifurcation; rather, in all likelihood he would save the costs and expense of a five-week trial on damages. The benefit [page704] to the plaintiff exceeded any prejudice to him as a result of some additional delay. While the plaintiff submitted that there would be an increased chance of settlement if the City was kept in the full action and was forced to incur the costs of a five- week trial on damages, refusing a motion for bifurcation to put pressure on a defendant to make an offer to settle was not a proper legal principle. The most just, expeditious, least expensive and most efficient use of judicial resources would be to hold a hearing on liability before the trial on damages.
While the matter had been set down for trial without objection from the City, it was appropriate to grant the City leave to bring the bifurcation motion. The City gave the plaintiff notice that it would be bringing the bifurcation motion shortly after the matter was set down, and the setting down for trial occurred without the specific consent of the City. No unreasonable delay was caused by the City's actions.
Motion for an order for separate hearings on issues of liability and damages.
Cases referred to 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.), apld Other cases referred to Aghsani v. Briglio, [2006] O.J. No. 2071, 148 A.C.W.S. (3d) 565, [2006] O.T.C. 457, 2006 17322 (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.); Mohajer Estate v. Frappier Group Inc. (1996), 1996 8047 (ON SC), 32 O.R. (3d) 222, [1996] O.J. No. 4660, 22 O.T.C. 244, 68 A.C.W.S. (3d) 777 (Gen. Div.) Statutes referred to Highway Traffic Act, R.S.O. 1990, c. H.8, s. 158 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04, 48.04, 48.04(1)
Peter J.E. Cronyn, for plaintiffs/responding party. Mark O. Charron, for moving party/defendant City of Ottawa. James D. Wilson, for defendants Jesse Rottenberg and Allan Rottenberg.
R. SMITH J.: -- Overview
[1] The defendant City of Ottawa ("City"), supported by the other three defendants, seeks an order for separate hearings on the issues of liability and damages. The City submits that the trial should be bifurcated because there is no jury, the issue of liability is not complex or lengthy, is distinct from the issue of damages, and the damages issues are complex and lengthy, involving some 18 different witnesses, many of which are expert witnesses. [page705]
[2] The City further submits that ordering a separate trial on the issue of liability will greatly reduce the time and expense to all parties as well as make efficient use of judicial resources. The City states that if it is not found liable, a second hearing on damages will be very unlikely. This would save all parties the time and expense of a five-week trial on damages as the plaintiffs' damages greatly exceed the insurance limits of the defendants other than the City.
[3] The plaintiffs argue that the City should not be granted leave to bring a motion under rule 48.04 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] as it has consented to the action being set down for trial for eight weeks commencing on January 14, 2013. Secondly, the plaintiff submits that if leave is granted, the City's motion to bifurcate should be denied.
[4] The plaintiffs dispute the City's estimate that the trial on liability would only take two weeks as well as its estimate of five weeks for a trial on the issue of damages. The plaintiffs estimate three to four weeks for the trial on liability and three to four weeks for the trial on damages.
[5] The plaintiffs also disagree with the submission that the City has a strong likelihood of success. While the plaintiffs do not allege any deficiency in the road repair or design, and acknowledge that the roadway and speed limit of 50 km/h comply with provincial standards, they allege that the City was negligent in failing to implement additional traffic calming measures to reduce traffic speed and volume on Sunnyside Avenue.
[6] The plaintiffs also disagree with the submission that the Rottenberg defendants have a strong defence. The Rottenberg vehicle was stopped at the stop sign or some distance back, when it was struck in the rear by the Byford-Harvey vehicle.
[7] The plaintiffs further submit that the possibility that a trial on the issue of damages would not be required if the City is not found liable is speculative and irrelevant.
[8] The following issues must be decided: (1) Should there be a separate trial of the issue of liability before the trial on damages? (2) Should the City be granted leave to bring this motion under rule 48.04? Factual Background
[9] This action arises out of a motor vehicle accident that occurred in the City of Ottawa on September 26, 2005. The plaintiff Ke Wang ("Wang") was standing at a bus stop located [page706] near the intersection of Sunnyside Avenue and Seneca Street when he was struck by a vehicle driven by the defendant Jonathan Byford-Harvey ("Byford-Harvey"). Wang sustained catastrophic injuries that rendered him a paraplegic with limited use of his right arm. Wang has not returned to competitive employment since the accident.
[10] Jesse Rottenberg ("Rottenberg") was driving his father's black SUV and Byford-Harvey was driving his father's silver SUV. Both Byford-Harvey and Rottenberg were 17 years old at the time, and therefore young and relatively inexperienced drivers.
[11] Both vehicles followed the same route from the Carleton arena through the campus, through the intersection at Bronson Avenue and Sunnyside Avenue, and then continued east on Sunnyside Avenue towards the intersection at Seneca Street. Rottenberg stopped his vehicle at the intersection of Seneca Street.
[12] At his examination for discovery, Byford-Harvey testified that he had been following the Rottenberg vehicle, and that he had observed Rottenberg's vehicle come to a complete stop ahead of him at the subject intersection. Byford-Harvey stated that as he attempted to bring his own vehicle to a stop immediately behind the Rottenberg vehicle, his vehicle started to slide forward. He stated that he veered right in an attempt to avoid a collision with Rottenberg's vehicle; however, he struck the back of Rottenberg's vehicle anyway. Byford-Harvey stated that this collision pushed his vehicle up onto the sidewalk, striking Wang as he stood waiting for the bus. Wang was dragged a short distance until the Byford-Harvey vehicle came to its final resting point against the brick wall of a nearby business.
[13] At the time of this accident, Wang was a successful software engineer. He was married to Christine Wettlaufer, a former engineer who is in the course of pursuing a career in teaching. The couple had just had their first child, the minor plaintiff, Isabel.
[14] At his examination for discovery, Rottenberg testified that he had no difficulty with traction as he braked his vehicle in advance of the subject intersection and had no problem coming to a complete stop. He testified that upon impact, his foot was still on the brake and that his vehicle was not pushed forward any significant distance after being struck from behind by the Byford-Harvey vehicle.
[15] Following the accident, Byford-Harvey was charged with following too closely under s. 158 of the Highway Traffic Act, R.S.O. 1990, c. H.8. His charge was later amended to careless driving and then reduced to making an unsafe lane change. [page707] Byford-Harvey pled guilty to this last charge, paid a fine and performed community service.
[16] All parties have obtained expert reports on the cause of the accident.
[17] The plaintiffs' accident reconstruction expert, Mr. Jennish, concluded based on his calculations that Rottenberg brought his vehicle to a stop four to six metres before the stop line at the subject intersection. He further stated that in his opinion the Byford-Harvey vehicle had been travelling east on Sunnyside Avenue at a speed of between 86 and 100 km/h before applying the brakes immediately before the collision. The speed limit on Sunnyside Avenue at the time of the accident was 50 km/h.
[18] Mr. Jennish concluded in his report that the driver error on the part of Byford-Harvey was the primary cause of the accident, however, also stated that the positioning of Rottenberg's vehicle at a considerable distance before the stop line was a contributing factor in the accident. In Mr. Jennish's opinion, had Rottenberg positioned his vehicle directly at the stop line, this accident may have been avoided.
[19] In the accident reconstruction report commissioned by the Rottenberg defendant's, Mr. Pilette stated that the Rottenberg vehicle was positioned four to six feet behind the Eastbound stop line at the subject intersection. In Mr. Pilette's opinion, the accident was caused solely as the result of the actions of Byford-Harvey.
[20] In the design forensics expert report prepared by John Robinson at the request of the City, he concluded that the accident was in no way caused or contributed to by the design elements, traffic control devices, location of bus stop, pavement conditions or the drainage provisions on Sunnyside Avenue. He further concluded that the accident was solely caused by the actions and decisions made by Byford-Harvey and possibly the defendant Rottenberg.
[21] The plaintiffs' estimate that their damages are between $6 and $10 million. The plaintiff's loss of income as a software engineer is between $2.9 and $5 million, and future care costs are estimated to be in the range of $2.8 and $5 million.
[22] The defendants agree that the plaintiffs' damages will be well in excess of the $3 million policy limits available from the Byford-Harvey vehicle and the Rottenberg vehicle's insurers. Alternatively, if no liability found against the Rottenberg defendants, the plaintiffs' damages will be exceed the combined $2 million policy limits from the Byford-Harvey vehicle and the Co-operators' OPCF 44 insurance coverage. [page708] Analysis
Issue #1 Should there be a separate trial of the issue of liability before the trial on damages?
[23] The authority to order a bifurcated proceeding is a narrowly circumscribed power and should only be excused in the clearest of cases; and as far as possible, a multiplicity of legal proceedings should be avoided.
[24] In Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 1986 2591 (ON CA), 55 O.R. (2d) 56, [1986] O.J. No. 578, 1986 CarswellOnt 618, at para. 11, the Court of Appeal set out the test to be met as follows:
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:
- As far as possible, multiplicity of legal proceedings shall be avoided.
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. (Emphasis added)
[25] Both parties agree that the above case sets out the test to be applied and that the moving party has the onus of demonstrating that there is a clear benefit to be gained in terms of time and expense from severing an issue from trial and that this burden is particularly high when the opposing party objects to the bifurcation.
[26] In Bourne v. Saunby, [1993] O.J. No. 2606, 23 C.P.C. (3d) 333 (Gen. Div.), Tobias J. set out the following list of 14 factors to be considered by the motion judge when deciding whether to bifurcate a particular case [at para. 30]: (i) are the issues to be tried simple; (ii) are the issues of liability clearly separate from the issues of damages; (iii) is the factual structure upon which the action is based so extraordinary and exceptional that there is good reason to depart from normal practice requiring that liability and damages be tried together; (iv) does the issue of causation touch equally upon the issues of liability and damages; (v) will the trial judge be better able to deal with the issues of the injuries of the plaintiff and his financial losses by reason of having first assessed the credibility of the plaintiff during the trial of the issue of damages; [page709] (vi) can a better appreciation of the nature and extent of injuries and consequential damage to the plaintiff be more easily reached by trying the issues together; (vii) are the issues of liability and damages so inextricably bound together that they ought not to be severed; (viii) if the issues of liability and damages are severed, are facilities in place which will permit these two separate issues to be tried expeditiously before one court or before two separate courts, as the case may be; (ix) is there a clear advantage to all parties to have liability tried first; (x) will there be a substantial saving of costs; (xi) is it certain that the splitting of the case will save time, or will it lead to unnecessary delay; (xii) has there been an agreement by the parties to the action on the quantum of damages; (xiii) if a split be ordered, will the result of the trial on liability cause other plaintiffs in companion actions, based on the same facts, to withdraw or settle; (xiv) is it likely that the trials on liability will put an end to the action[.]
[27] In Aghsani v. Briglio, [2006] O.J. No. 2071, 2006 17322 (S.C.J.), Power J. held that the above list of criteria was not exhaustive and the discretion of the motion judge was not confined to consideration of only these questions. He stated [at para. 29]: "I agree, that different factors may be given different weight and that, therefore, it would not be a proper exercise of judicial discretion for a court to simply determine whether a preponderance of factors favours one party or the other". In addition, in Aghsani, supra, Power J. identified the following additional factor to be considered, namely [at para. 30]:
. . . the court's increased role in trial management in the sense that the request for bifurcation should not be analyzed only in the context of the opposing parties. The decision should take into consideration the public's interest in the administration of justice. In other words, the issues may, in some instances, transcend the interests of the combatants in the particular case before the court.
[28] I will review the Bourne v. Saundy, supra, factors as applied to the facts in this case. (i) Are the issues to be tried simple
[29] I agree with the defendants' submission that the issue of liability with regards to the City is not a simple issue. The issue of liability with regards to Byford-Harvey is simple. The issue related to how far the Rottenberg vehicle was stopped before [page710] the stop line involves a factual determination of where the Rottenberg vehicle [was], which is a relatively simple issue.
[30] The damages issues are not simple and are quite complex. I agree with the defendants' submission and find as a fact that much more time would be required to deal with the issue of damages than the issues of liability. (ii) Are the issues of liability clearly separate from the issues of damages
[31] The issues of liability are clearly separate from the issues of damages and all parties agree that this is the case. The parties do not dispute that Wang was severely injured and that only the Byford-Harvey vehicle struck Wang. The only overlap in the liability and damages hearings would be Wang's evidence with regards to his observation of the accident. However, his evidence on what he observed would be very brief as the accident happened quickly and how the accident occurred is not in dispute. The only issue would be Wang's observation if any of where the Rottenberg vehicle stopped. The damages issues relate to factors including the reasonableness and quantum of future care costs, economic loss and other pecuniary losses, and are not affected or related to the evidence on liability or the mechanism of the accident. This factor favours bifurcation.
[32] Because there is no jury, it makes it easier to have separate trials on the issues of liability and damages. (iii) Is the factual structure upon which the action is based so extraordinary and exceptional that there is good reason to depart from normal practice requiring that liability and damages be tried together
[33] The action involves a claim for damages for personal injury suffered in a motor vehicle accident which in itself is not exceptional. Extensive damages have been suffered by the plaintiff which will require many expert witnesses by all parties; some 18 witnesses in total are anticipated to be called on the issue of damages. The damages are estimated by the plaintiffs to be between $6 and $10 million. The exceptional factual issue of this case is the policy limits of the insurance policies for all defendants except the City of Ottawa. The policy limits total $3 million and the plaintiffs' damages greatly exceed the insurance limits if the City is not found liable. In this unique circumstance, a trial on damages would be unlikely if the City is not found liable. [page711] (iv) Does the issue of causation touch equally upon the issues of liability and damages
[34] The issue of causation as it relates to liability is entirely unrelated to any questions with regards to the plaintiffs' damages. (v) Will the trial judge be better able to deal with the issues of the injuries of the plaintiff and his financial losses by reason of having first assessed the credibility of the plaintiff during the trial of the issue of damages
[35] Wang's evidence with regards to where the Rottenberg vehicle was stopped or how the accident occurred is unlikely to have any impact on assessing his credibility with regards to issues of damages. (vi) Can a better appreciation of the nature and extent of injuries and consequential damage to the plaintiff be more easily reached by trying the issues together
[36] The issue of liability is distinct from the assessment of damages. There is no dispute that the Byford-Harvey vehicle struck Mr. Wang while he was waiting for the bus. The trial judge would have no better appreciation of the injuries suffered by Wang from having the issues of liability and damages tried together. (vii) Are the issues of liability and damages so inextricably bound together that they ought not to be severed
[37] The issues of liability and damages are distinct and this factor favours bifurcation.
[38] Justice Coulter A. Osborne recommended that courts be granted greater authority to order a trial of an issue in his report on civil justice reform. This recommendation was not incorporated into the Rules of Civil Procedure ("Rules"). However, there were many amendments to the Rules as a result of his report to permit matters to be decided and cases managed in a way that promoted access to justice and reduced costs to the parties. [page712] (viii) If the issues of liability and damages are severed, are facilities in place which will permit these two separate issues to be tried expeditiously before one court or before two separate courts, as the case may be
[39] The trial date has been set to commence in mid-January of 2013 without a jury. The defence suggests that it is possible to arrange a two-week trial in the fall of 2012. There is no evidence before me of available dates and also, given the number of senior counsel in this matter there is no evidence of their availability. I find that it is unlikely that a two-week trial on liability can be scheduled for the fall of 2012. In any event, there would be limited savings of time from having the trial in mid-January of 2013 versus the fall of 2012. The City has also stated that if it is unsuccessful on the issue of liability at trial, that it intends to appeal. However, this will likely occur whether the matters of liability and damages are tried together or whether they are tried separately. However, there is the possibility of two appeals. (ix) Is there a clear advantage to all parties to have liability tried first (x) Will there be a substantial saving of costs
and (xi) Is it certain that the splitting of the case will save time, or will it lead to unnecessary delay
[40] I find that factors (ix), (x) and (xi), the court's interest in an increased role in trial management, and the public interest in the administration of justice to ensure efficient use of court time are the major factors that will be given the greatest weight in my decision. If time and costs would be saved, and more efficient use of judicial resources could be achieved by having separate trials, this would be beneficial to all parties and it would be a strong factor favouring bifurcation.
[41] The defendants submit that having a trial on the issue of liability before a trial on damages would be advantageous to all parties, as it would save time, avoid delay and make efficient use of judicial time and resources.
[42] The defendants further argue that there is no prejudice to Wang as he has received a financial settlement from his accident benefits insurance of $1 million and an advance payment of $1 million from the Byford-Harvey insurer for a total of $2 million. [page713]
[43] The plaintiffs disagree and submit that having a separate trial on liability would cause undue delay for the plaintiffs, and as a result submit bifurcation would be prejudicial to the plaintiffs. The plaintiffs further submit that the defendants are only speculating when they state that a trial on damages will be unlikely if the City is not found liable. The plaintiffs further argue that the chances of a global settlement are greater if the issues of damages and liability are tried together. Length of Trial on Liability
[44] The defendants submit that the trial on liability would be completed within two weeks. The plaintiffs argue that trial on liability will take from three to four weeks and submit that the damages portion would also take three to four weeks.
[45] The issues to be determined at a trial on liability are as follows: Liability of Byford-Harvey (a) The liability of Byford-Harvey is not contested; he pleaded guilty to a highway traffic offence and his insurer has paid the plaintiff its policy limits of $1 million. As a result, this issue will not take much time, if any. Liability of the Rottenbergs (a) The liability of the Rottenbergs is an issue that will be strongly contested as the evidence of the driver of the Rottenberg vehicle, the Byford-Harvey vehicle and a bystander is that the Rottenberg vehicle was stopped at the stop line. The plaintiff's accident reconstruction expert will state that based on his calculations, the Rottenberg vehicle must have stopped four to six metres before the stop line and therefore contributed to the accident. (b) This factual issue is relatively straightforward, namely, did the Rottenberg vehicle stop four to six feet before the stop line or four to six metres before the stop line at the intersection? The anticipated witnesses on this issue are the expert witnesses, Jennish and Pilette, the drivers of the two vehicles and their passengers, the bystander witness and Mr. Wang. The plaintiffs have listed a number of other witnesses, including the bystander, a photographer, the investigating officers; however, their evidence would be brief. [page714] (c) The accident reconstruction experts have estimated the speed of the Byford-Harvey vehicle at impact and at the crest of the hill, as well as the location of the Rottenberg vehicle. (d) I find that examination and cross-examination of the witnesses related to the liability of the Rottenbergs would take four to five days of trial time. This is a judge-alone trial as a jury is not permitted when a municipality is a defendant. The issues are well defined to determine for Rottenberg's liability, namely, the location where the Rottenberg vehicle stopped and whether its location contributed to causing the Byford-Harvey vehicle to hit Wang. Liability of the City (a) The plaintiffs' experts, Mr. Jennish and Mr. Gilchrist's, theory of liability against the City is as follows: (i) the Byford-Harvey vehicle was travelling at between 86 km/h and 100 km/h; (ii) if Byford-Harvey's vehicle had been travelling at or slightly above the posted speed limit of 50 km/h, he should have been able to react and come to a complete stop before reaching the Rottenberg vehicle; (iii) the City was aware of complaints of vehicles travelling above the speed limit on Sunnyside Avenue from the neighbourhood residents and from previous traffic studies on Sunnyside Avenue, was aware of the risk to pedestrians and failed to take adequate traffic calming measures to slow the traffic; and (iv) if the City had taken adequate traffic calming measures, Byford-Harvey would have either driven more slowly or would have used another street. (b) The witnesses on the liability of the City will be largely the plaintiffs' expert witness Mr. Gilchrist, presumably an expert on behalf of the City, one or more city employees and possibly one or more members of the Ottawa South Community Association. I find that these witnesses would take approximately five days of court time. (c) Almost all of the factual evidence related to previous traffic study reports and concerns of neighbourhood group is uncontested. The only contested issue is whether the City [page715] was negligent by failing to implement further traffic calming measures above the provincial standards constitutes negligent conduct, and whether this omission to implement further traffic calming measures caused or was a contributing cause of the accident. Counsel would also require time for submissions. I accept the plaintiffs' lower estimate and find that a maximum of three weeks would be required to complete a trial on the liability issue. I also find that much of the evidence will be uncontested and could be entered as an agreed statement of facts with agreement of counsel. The only contested evidence is the location of where the Rottenberg vehicle stopped. (d) The issue of the City's liability is almost only a legal issue as the underlying facts are not really contested, namely, that a number of traffic studies that have been conducted by the City, that concerns about traffic and excessive speeds on Sunnyside Avenue had been previously expressed to the City and that the City did not implement any additional traffic calming measures before the accident occurred. Length of Trial for Damages
[46] The City estimates that a trial on damages will be both lengthy and expensive as it involves some 18 witnesses, many of which are expert witnesses and four are treating health care providers. I find that a trial on the damages would take approximately five weeks of trial time as estimated by the defendants. All the parties have estimated that the total length of trial on liability and damages would take eight weeks and I have found that the liability portion would take only three weeks. This leaves a balance of five weeks for the trial on damages which I find is a reasonable estimate. Delay
[47] The plaintiff argues that there will be increased delay if the trial on damages is not held at the same time as the trial on liability. The City has indicated that if it is found liable, that it intends to appeal. This situation is the same whether or not the matters are tried together, but an appeal will delay matters in both situations.
[48] However, if the plaintiffs are successful against the City, after a trial and after an appeal on liability, then the plaintiffs will be assured full recovery for their damages, without having to take the risk of incurring the substantial legal expense of completing five weeks of trial on damages and paying for the [page716] costs of multiple experts to testify. This would be beneficial to the plaintiffs.
[49] Further, I find that if the plaintiffs are successful against the City on liability that the chances of settling the damages would be greatly increased, thereby likely saving all parties the expense of a five-week trial plus the costs of expert witnesses on the damages issues.
[50] If the plaintiffs are successful against the Rottenbergs, I find that it is very likely that their insurer would pay its full policy limits to the plaintiffs, as the plaintiffs' damages greatly exceed the insurance available from both Byford-Harvey and the Rottenbergs' insurance companies. The only issue that would remain on damages would be the possibility of recovery against the personal assets of Allan Rottenberg as the owner of the vehicle. The chances of settling the amount of damages with the Rottenbergs, if they are found partially liable, would still be quite high as the amount of assets in Alan Rottenberg's personal name would not likely equal the amount of damages of $6 to $10 million. The insurance available would only cover $3 million of damages and while possible, it is unlikely that Allan Rottenberg would have more than $3 to $7 million to contribute personally towards the damages.
[51] In the event that the City and Rottenberg are not found liable, I find that it is highly unlikely that there would be a trial on damages as Byford-Harvey has paid its full insurance limits to the plaintiffs. If the City is not found liable and Rottenberg is found liable, then based on the reasoning in the previous paragraph, a trial on damages is still unlikely but greater than if both the City and Rottenberg are not found liable. Strength of Case
[52] The City submits that it has a strong case on liability as the plaintiff does not allege any negligence with regards to the condition, maintenance or design of the roadway. The speed limit of 50 km/h and the road design are in compliance with provincial standards. The plaintiffs allege that the City was negligent for failing to take additional traffic calming measures on Sunnyside Avenue. The plaintiffs' position is somewhat novel but I do not have sufficient evidence or case law to give this aspect any weight. The issue of liability of the City will only be determined after a trial where the issues and duty of care will be fully canvassed. The same comments apply to the strength of the Rottenberg defence as this will largely depend on a finding of fact of where the Rottenberg vehicle was stopped. [page717] Prejudice to the Plaintiff
[53] The plaintiff argues that he will be prejudiced by additional delay if a separate hearing is held on liability. The defendants submit that all parties including the plaintiff will likely save the legal and expert witness costs of a five- week trial on damages. I agree with the defendants' submission as I have found as a fact that a trial on the issue of damages is unlikely if the City is not found liable, and liability against the City is not assured.
[54] In Mohajer Estate v. Frappier Group Inc. (1996), 1996 8047 (ON SC), 32 O.R. (3d) 222, [1996] O.J. No. 4660, 1996 CarswellOnt 5345 (Gen. Div.), Master Beaudoin, on the request of the plaintiff ordered bifurcation of the proceeding as found it was very likely to result in a substantial reduction of trial time and would possibly dispose of the matter altogether. I agree with the reasoning in Mohajer and find the same reasoning applies to the case before me as there would be likely be a saving of five weeks of trial time if a separate trial was held on the issue of liability.
[55] All of the cases referred to me where bifurcation was refused, other than the Mohajer Estate, supra, were all jury trials which cannot easily be bifurcated and as such are all distinguishable from the facts before me. In addition, this motion has not been brought on the eve of trial, but rather a lengthy period before trial. As a result, the parties have not completed preparation for trial on damages, and I find that there will be a substantial saving of expense and time to all parties in proceeding in this manner.
[56] If the City is found liable, after a trial and an appeal on the liability issue, there would be some additional delay to the plaintiff; however, in this eventuality Wang would be assured that he would receive full recovery, he has already received a $2 million payment from his accident benefits and the Byford-Harvey insurer, and there is no duplication of costs or expense by delaying the trial on damages. In addition, the chances of settlement for full payment of his damages would increase greatly once liability has been confirmed.
[57] As a result, I find as a fact that the plaintiff would suffer minimal prejudice in these unique circumstances and would in fact in all likelihood save the costs and expense of a five-week trial on damages. I find that the benefit to the plaintiff exceeds any prejudice to him as a result of some possible additional delay. The possibility of a second appeal on the issue of damages would be unlikely as damages would be largely findings of fact. [page718] (xii) Has there been an agreement by the parties to the action on the quantum of damages
[58] There has been no agreement on damages. (xiii) If a split be ordered, will the result of the trial on liability cause other plaintiffs in companion actions, based on the same facts, to withdraw or settle
[59] Not applicable. (xiv) Is it likely that the trials on liability will put an end to the action
[60] See the previous comments on items (ix), (x) and (xi). Chance of Settlement if Bifurcation Motion is Refused
[61] The plaintiffs submit that there will be an increased chance of settlement if the City is kept in the full action and is forced to incur the costs of a five-week trial on damages. There is a possibility the City would offer some amount to settle to avoid the costs that it would otherwise incur in a five-week trial on damages, which would probably cost it in the range of $100-$200,000.
[62] Notwithstanding the above situation, I find that refusing a motion for bifurcation to put pressure on a defendant to make an offer to settle to avoid the costs of a five-week trial on damages is not a proper legal principle that should be given much weight. I find that more weight should give to the principles set out in rule 1.04, namely, which manner of proceeding would be the most just, expeditious and least expensive to the parties. Disposition of Issue #1
[63] For the above reasons and having weighed the factors set out in Bourne, supra, and because I find as a fact based on the evidence before me and for the reasons given above that the most just, expeditious, least expensive and most efficient user of judicial resources would be to hold a hearing on liability before the trial on damages.
Issue #2 Should the City be granted leave to bring this motion under rule 48.04?
[64] The plaintiffs submit that the City must obtain leave of the court in order to bring the motion for separate trials on the issues of liability and damages because the City consented to the matter being set down for trial. [page719]
[65] The City submits that it gave notice to the plaintiffs at the first pre-trial held in September of 2011 that it intended to bring a motion to bifurcate the trial. If leave is required, then the City seeks leave to bring this motion. The City acknowledges that it did not object when the matter was listed for trial in accordance with Master Roger's endorsement.
[66] Rule 48.04(1) of the Rules of Civil Procedure reads as follows:
48.04(1) Subject to subrule (3), any party who has set an action down for trial and any party who has consented to the action being placed on a trial list shall not initiate or continue any motion or form of discovery without leave of the court. (Emphasis added)
[67] A timetable for various steps in the proceeding was agreed to between counsel on about February 15, 2010. This timetable was incorporated into an order signed by Master Roger on August 19, 2010. It included time limits for exchanging expert reports, examinations for discovery and mediation. In his endorsement, Master Roger added the following handwritten notes in para. 1 and "in any event, this matter shall be set down for trial no later than August 19, 2011".
[68] While the order indicates that it was on consent, the handwritten addition setting a time limit for setting the matter down for trial was added by the master after the other terms of the order had been consented to. In any event, no objection was taken by the City or by any other defendants to the proposed timetable including the master's additions to the order setting a date by which the matter had to be set down for trial.
[69] The first pre-trial was held on September 7, 2011, shortly after the matter had to be set down for trial. A further pre-trial was ordered to be held by the pre-trial judge. In response to an e-mail from the trial coordinator, counsel for the City responded on September 27, 2011, before the trial date was set, stating that it would be moving for an order seeking bifurcation. The trial date was therefore agreed to by counsel after the City had given notice that it intended to bring a motion for bifurcation.
[70] On November 10, 2011, the City requested a date for the motion for bifurcation from the trial coordinator. A date for this motion was given without objection by the plaintiffs.
[71] While there has not been an unexpected change in circumstances since the proceeding was set down for trial, the City gave notice shortly after the first pre-trial was held and also a very short time after the matter was set down for trial that it would be bringing a motion to bifurcate; and the setting [page720] down for trial occurred without the specific consent of the City, but the City did not object to Master Roger's addition. The City did not technically consent although did not object to the matter being set down for trial, or to the timetable proposed by Master Roger; however, it gave notice in September 2011 that it would bring a motion to bifurcate, one year and five months before the trial was set to commence, without objection by the plaintiffs. No unreasonable delay was caused by the actions of the City. Disposition
[72] In the circumstances having concluded that it would be the most just, cost effective and expeditious use of time and judicial resources to have separate hearings on liability and damages, the fact that the City gave the plaintiffs notice that it would be bringing a motion to bifurcate the proceeding shortly after it was set down, the fact that the plaintiff did not object at the time a motion was requested, where a pre- trial had been held and the pre-trial judge concluded that the matter was not ready for trial and a further pre-trial was necessary, I grant leave to the City to bring this motion for separate hearings on the issues of liability and damages. Disposition on Motion
[73] The motion to bifurcate the trial is granted. The defendants shall have ten days to make submission on costs, the plaintiff shall have ten days to respond and the defendant City shall have seven days to reply.
Motion granted.