Soulliere, by his Litigation Guardian Soulliere, et al. v. The Estate of Robitaille et al.

[Indexed as: Soulliere (Litigation Guardian of) v. Robitaille Estate]

Ontario Reports

Ontario Superior Court of Justice,

R. Smith J.

August 9, 2013

117 O.R. (3d) 95 | 2013 ONSC 5073

Case Summary

Civil procedure — Trial — Bifurcation — Plaintiff bringing action for damages arising out of motor vehicle accident — Defendant moving three months before trial for separate hearings on issues of liability and damages — Motion dismissed — Rule 6.1.01 of Rules of Civil Procedure not removing court's inherent jurisdiction to order bifurcation of trial without consent of parties — Defendant failing to show that case was so extraordinary or exceptional that bifurcation should be ordered or that bifurcation would result in savings in time and costs — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 6.1.01.

The plaintiff was catastrophically injured in a motor vehicle accident when his mother lost control of her vehicle after the vehicle's wheels caught the shoulder of the road. He sued his mother's estate, the driver of another vehicle and the counties. Three months before the trial, the counties brought a motion for separate hearings on the issues of liability and damages. The plaintiff did not consent.

Held, the motion should be dismissed. [page96 ]

Rule 6.1.01 of the Rules of Civil Procedure does not remove the court's inherent jurisdiction to order separate hearings on liability and damages without the consent of the parties in the clearest of cases. The factual structure of this case was not so extraordinary and exceptional that there was good reason to depart from the normal practice of deciding all issues in one trial. Ordering bifurcation would not result in a substantial saving of time and costs, as a large part of the preparation for the damages part of the trial had already been completed. The plaintiff would be disadvantaged by the delay.

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

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; Wang v. Byford-Harvey (2012), 110 O.R. (3d) 703, [2012] O.J. No. 2281, 2012 ONSC 3030, 25 C.P.C. (7th) 299 (S.C.J.), distd

Trinity Anglican Church v. Janeiro, [2012] O.J. No. 3791 (S.C.J.), not folld

Other cases referred to

Aghsani v. Briglio, [2006] O.J. No. 2071, [2006] O.T.C. 457, 2006 17322, 148 A.C.W.S. (3d) 565 (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.)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 6.1.01

MOTION for an order bifurcating the issues of liability and damages.

Derek G. Nicholson, for plaintiffs.

Mark O. Charron, for moving party/defendant, the Corporation of the United Counties of Prescott and Russell.

R. SMITH J.: —

Overview

[1] The plaintiff Christopher Soulliere ("Christopher") was catastrophically injured when his mother lost control of her vehicle. The vehicle's wheels caught the shoulder of the road, she overcorrected and slid into the path of an oncoming vehicle driven by Mr. Guy Laberge ("Laberge"). Christopher was a passenger in the vehicle. He is claiming damages of over $20 million, a large portion of which is for future care costs.

[2] Christopher is claiming damages against his mother, Isabel Robitaille ("Robitaille"), the driver of the vehicle, Mr. Laberge, the driver of the other vehicle, and the United Counties of Prescott and Russell (the "Counties"). The plaintiffs claim the Counties were negligent and partially caused the [page97 ]accident by failing to properly grade the shoulder of the road, leaving a three- to four-inch drop, failing to install a white line marking the edge of the road, and failing to erect proper signage indicating the curve in the road and the appropriate speed.

[3] The Counties have brought a motion to have separate hearings on the issues of liability and damages. The Counties submit that ordering a bifurcated trial would make efficient use of judicial resources and reduce the costs to all parties.

[4] The matter is set for a five-week trial commencing in early September 2013. The Counties submit that the liability issues are distinct from the damages issues and would occupy less than two weeks of the allotted trial time. Twenty-five expert reports have been filed and some 20 witnesses are expected to testify on the damages issue.

[5] The plaintiff argues that bifurcating the trial is inappropriate because the Counties have brought their motion too late, namely, three months before the trial is set to commence, that it would cause serious prejudice to the plaintiff by causing an additional delay of two to four years, that it would cause financial prejudice to the plaintiff as his rehab and attendant care funding may run out, and that it would deny the plaintiff access to justice.

[6] In addition, the plaintiff submits that the court lacks jurisdiction to order the bifurcation of a trial without the consent of the parties, based on rule 6.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which states that"with the consent of the parties, the court may order a separate hearing . . . on the issues of liability and damages".

[7] The following issues must be decided:

(a) Does the rule 6.1.01 remove the court's jurisdiction to order separate hearings on liability and damages without the consent of all parties?

(b) If not, should the court order separate hearings on liability and damages?

Background Facts

[8] The action arises out of a motor vehicle accident which occurred on September 12, 2008 at approximately 8:00 p.m. Isabel Robitaille was driving eastbound on Front Road in the United Counties of Prescott and Russell. Her son Christopher Soulliere was a passenger in the front seat. After negotiating a curve in the roadway, Robitaille lost control of her vehicle, the vehicle's wheel caught the shoulder and she overcorrected and [page98 ]swerved across the centre line of the roadway, and into the path of an oncoming vehicle operated by Guy Laberge.

[9] Robitaille passed away as result of injuries she suffered in the accident. Her son Christopher suffered catastrophic injuries. The Soulliere action was commenced on March 27, 2009. Christopher is claiming damages in excess of $20 million. Christopher and his family members have claimed for damages against Robitaille's estate, the Counties and Laberge.

[10] Laberge and his wife and children have also commenced action on October 27, 2009 against Robitaille's estate, and the Counties.

[11] The Soulliere and Laberge actions have been ordered to be tried together.

[12] Robitaille's estate has accepted primary responsibility for the injuries caused by the accident and its insurer has paid out the insurance policy limits of $1 million into court. The damages suffered by Christopher greatly exceed the policy limits paid into court and as a result a trial on the issue of damages will only be necessary if there is a finding of liability of some percentage against the Counties. The Laberge vehicle also had insurance coverage limits of $1 million.

[13] The parties have completed all examinations for discovery as of November 3, 2011. The parties have also attended two pre-trials, the last having occurred on December 19, 2012.

[14] A five-week trial is currently scheduled to commence on September 9, 2013. There will be no jury as one of the defendants is a municipality (the Counties).

Liability

[15] At discovery, Laberge stated that, immediately prior to the accident he had been travelling westbound on Front Road East, in the Township of East Hawkesbury. He stated that as he advanced towards the curve, he observed the Robitaille vehicle's lights go up and down and then saw it sliding sideways across the centre line directly into his vehicle's path. He stated he had no time to apply the brakes before colliding with Robitaille's vehicle.

[16] At his discovery, Christopher stated that he has no memory of the accident and the driver of the Robitaille vehicle is unavailable to testify because she died in the accident.

[17] At the discovery of Mr. Laberge's wife, she stated that immediately following the accident she attended at the scene and observed a three- to four-inch drop-off between the level of the pavement and the gravel shoulder of the highway. [page99 ]

[18] The plaintiffs and the Counties have each retained accident reconstruction experts who have prepared reports on the cause of the accident. In addition, the Ontario Provincial Police have prepared a technical traffic collision investigation report. It concluded that the accident was caused as a result of driver error because of Robitaille's overcorrection while steering the vehicle on the wet road conditions at the time.

[19] The plaintiff's road construction engineering experts state in their reports that the Counties contributed to causing Ms. Robitaille to lose control and thereby contributed to causing the accident in the following ways:

(i) the Counties failed to properly grade the shoulder adjacent to the pavement and failed to provide a white edge line on the exterior side of the curve;

(ii) the Counties erected the sharp curve warning sign for eastbound traffic too close to the subject curve and the design of the sign did not conform to the uniform traffic control guidelines;

(iii) the Counties failed to provide road sign delineators for eastbound motorists traversing the curve on Front Street at the collision site; and

(iv) the Counties failed to provide chevron alignment signs for eastbound motorists on the curve.

[20] The Counties' expert engineering report, obtained from Brian Malone, states that the Counties had actively patrolled the highway in question leading up to the accident, that the shoulder of the roadway in the area of the collision was in conformance with the applicable standards, that there is insufficient information to conclude that there was a pavement edge drop-off or that the shoulder was in a state of non-repair at the location and at the time of the subject collision, and that the "sharp curve" warning sign and the location of the signs for eastbound and westbound traffic were in compliance with applicable standards and guidance at the time of the installation of the signs.

Damages

[21] Christopher was born on January 13, 1993 and is currently 20 years old. At the time of the accident, he was 15 years of age. Christopher has suffered catastrophic injuries as a result of the accident, including a brainstem injury, a left sacral wing fracture and a pelvic fracture. [page100]

[22] Mr. Laberge was born on December 17, 1961 and is currently 51 years of age. At the time of the accident, he was 48 years old. As a result of the accident, Laberge sustained a fracture of his right ankle requiring internal fixation.

[23] Twenty-five expert reports have been filed and exchanged by all of the parties related to damages from ten expert witnesses. It is anticipated that approximately 20 witnesses will testify on the damages issues at trial.

[24] The plaintiff calculates the future care costs portion of his claim at between $15 million and $20 million, and the future cost of a guardian claimed is between $3,100,000 and $4,500,000. These amounts do not include the plaintiff's expert's estimated present value of the plaintiff's future loss of income claims.

[25] The parents are currently providing 24/7 attendant care to Christopher and are paid $6,000 per month for providing this care. Before the accident occurred, Christopher's parents were living on his father's retirement pension of approximately $2,300 per month plus his stepmother's minimum wage income from working as a waitress. As a result, the parents are earning a greater income for caring for their son at present. The remaining amount in the attendant care fund for Christopher is presently $509,496. This fund is being depleted at the rate of $6,000 per month. The amount remaining is sufficient to provide attendant care for Christopher for approximately another seven years.

[26] The remaining amount in the medical/rehab fund available for Christopher is $137,360 of the original amount of $1 million. The difference or approximately $860,000 has been expended on Christopher over the past five years for ongoing therapies. The remaining funds will not last for very long if Christopher continues to use medical/rehab services at the same rate.

Analysis

Issue #1 Does rule 6.1.01 remove the court's jurisdiction to order separate hearings on liability and damages without the consent of all parties?

[27] 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 Court of Appeal held that a judge's inherent jurisdiction to bifurcate a proceeding was a narrowly circumscribed power, which is a departure from the basic right of litigants to have all issues in dispute decided in one trial and ought therefore to be exercised only in exceptional cases. Justice Morden stated as follows, at para. 11: [page101]

However, since it is a basic right of a litigant to have all issues in dispute resolved in one trial [the power to grant in order for bifurcation or split a trial] must be regarded as a narrowly circumscribed power. . . . 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 . . . objects to its exercise.

[28] Rule 6.1.01 of the Rules of Civil Procedure became effective on January 1, 2010, and states 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.

[29] The wording of rule 6.1.01 did not follow the recommendations of the Osborne Commission, which had recommended that the Rules be amended to permit bifurcation on motion by the parties or on the court's initiative, having reference to the factors set out in the case of Bourne v. Saunby, [1993] O.J. No. 2606, 23 C.P.C. (3d) 333 (Gen. Div.).

[30] In Kovach (Litigation Guardian of) v. Kovach (2010), 100 O.R. (3d) 608, [2010] O.J. No. 643, 2010 ONCA 126, the Ontario Court of Appeal held that a judge does not have jurisdiction to order bifurcation of a jury trial in the absence of the parties' consent under rule 6.1.01 of the Rules of Civil Procedure. However, the case before me is not a jury trial.

[31] In Trinity Anglican Church v. Janeiro, [2012] O.J. No. 3791 (S.C.J.), K.L. Campbell J. concluded that in accordance with rule 6.1.01"I simply have no jurisdiction to allow the motion and make the requested bifurcation order in the absence of 'the consent of the parties.'" I find that rule 6.1.01 is permissive in its wording and permits bifurcation of a trial with the consent of the parties. However, I do not find that the wording of rule 6.1.01 removes a judge's inherent jurisdiction to bifurcate in the interest of justice and in the clearest of cases, found to exist by the Court of Appeal in the Elcano Acceptance Ltd. decision, supra. Clear language would be required to remove the court's inherent jurisdiction.

Disposition of issue #1

[32] As a result, I conclude that rule 6.1.01 does not remove the court's inherent jurisdiction to order bifurcation in the circumstances set out in Elcano Acceptance Ltd. [page102]

Issue #2 Should the court order separate hearings on liability and damages?

[33] I have copied some parts of the factums filed by the parties in drafting this decision. In Bourne v. Saunby, supra, a decision of Tobias J., he set out a list of 14 factors that might be considered by a motion judge in deciding whether bifurcation is appropriate in a particular case. The factors are as follows [at para. 30]:

(i) are the issues to be tried simple;

(ii) are the issues of liability clearly separate from the issues of damages;

(ii) 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;

(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; [page103]

(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; [and]

(xiv) is it likely that the trials on liability will put an end to the action?

[34] 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, 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.

[35] I will consider the factors outlined in Bourne v. Saunby, supra.

(i) Are the issues to be tried simple?

[36] The issues are not simple. There are conflicting expert reports from both Soulliere and the Counties as to the cause of the accident. The damages issues are also not simple as there have been approximately 25 expert reports exchanged by ten different expert witnesses.

(ii) Are the issues of liability clearly separate from the issues of damages?

[37] In this case, Christopher has no memory of the accident and the driver of his vehicle died in the accident. Therefore, the liability issue is quite separate from the issue 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 the normal practice requiring that liability and damages be tried together?

[38] In this case, the parties agree that the damages greatly exceed the policy limits involved of both the Soulliere and the [page104] Laberge vehicles. The damages issues are complex and the plaintiff's reports suggest that the damages could exceed $20 million. The defendants have not agreed with the amount of damages claimed and therefore I do not have sufficient evidence to conclude that a settlement would be likely on the issue of damages if some liability was found against the Counties. A trial on damages would be unlikely if the Counties were not found to be partially liable as Robitaille's insurer has paid its limits into court and the Laberge vehicle's limits are also not sufficient.

[39] The factual structure of this case is not similar to the extraordinary and the exceptional situation which was present in the Wang v. Byford-Harvey [(2012), 2012 ONSC 3030, 110 O.R. (3d) 703, [2012] O.J. No. 2281 (S.C.J.)] case. The Wang v. Byford-Harvey case raised a novel issue of fact and law. The plaintiff's experts' reports agreed that the city had met all of the provincial standards for speed limit, design and maintenance of the roadway and the sidewalks where the accident occurred. However, the plaintiffs alleged that the city was negligent and liable for damages because it had knowledge of complaints from some neighbourhood groups asking that additional speed reduction measures be taken by the city on the street where the accident occurred. In the Wang v. Byford-Harvey case, the plaintiffs raised a novel legal issue, namely, whether the city owed a duty of care to take additional traffic calming measures above the recognized provincial standards for street design and maintenance and speed levels.

[40] In this case, both the plaintiff and defendants have filed competing experts' reports giving opposing opinions on whether the Counties properly maintained the shoulder of the road and installed proper signage and whether these factors contributed to causing the accident. Having expert witnesses give contrary expert opinion on the cause of an accident is not exceptional or extraordinary and in fact is very common in motor vehicle accident cases. This factual structure does not raise a novel point of law.

(iv) Does the issue of causation touch equally upon the issues of liability and damages?

[41] The issues of liability and damages are not related in this case.

(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?

[42] There will be no benefit to the court by assessing the plaintiff's credibility in hearing his evidence related to the [page105] cause of the accident because Christopher has no memory of the accident.

(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?

[43] This factor does not weigh heavily one way or the other because extensive expert evidence on the injuries suffered and damages caused will be provided in the damages portion of the trial.

(vii) Are the issues of liability and damages so inextricably bound together that they ought not to be severed?

[44] The issues of liability and damages are not inextricably bound together in this case.

(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?

[45] The trial for both liability and damages is scheduled to commence at the beginning of September 2013. The defendant has waited until three months before the commencement of the trial to bring this application for bifurcation. I infer that a large part of the expense and time for the preparation for the damages component of the trial has already been incurred by both parties as the Counties state that some 25 expert reports on damages have already been exchanged. The Counties have also stated that they intend to appeal if they are found partially liable. This will cause a delay in any event.

(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?

[46] I have found that the factual structure of this case is not one that is so extraordinary and exceptional that there is good reason to depart from the normal practice, that all issues be decided in one trial. I also find that there is not a clear advantage and will not be a substantial savings of costs if bifurcation is ordered because a large part of the preparation for the [page106] damages part of the trial has already been completed as 25 expert reports on damages have already been exchanged between the parties.

[47] The disadvantage to the plaintiff is a potential delay. Even if he were to be successful on the liability portion of the trial, Christopher would be forced to wait for the completion of an appeal on the liability portion of the trial, and then to have a second trial on damages at a subsequent date.

[48] Christopher has only $137,360 remaining of the original $1 million which has been expended in just under five years for ongoing rehab and medical therapies. In this case, the plaintiff needs substantial medical and rehab care and ongoing assistance and the funding for his medical and rehab care may be exhausted before two hearings and two possible appeals are completed.

[49] Having considered all of the above factors, for the above reasons I am not satisfied that the Counties have shown on a balance of probabilities that this is such an extraordinary and exceptional case or that there are savings of time and costs that a separate hearing on liability and damages should be ordered. As a result, the motion for bifurcation is dismissed.

Costs

[50] Plaintiffs may make submissions on costs within 15 days. The defendants shall have 15 days to respond, and the plaintiffs shall have seven days to reply.

Motion dismissed.

End of Document