COURT FILE NO.: CV-09-383220
MOTION HEARD: DECEMBER 13, 2013
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Nash Woodbury, a minor by his Litigation Guardian, Tracy Lillico and Tracy Lillico v. Robert Woodbury and Lance Fraser Hamilton
BEFORE: MASTER R.A. MUIR
COUNSEL: Philip C. Polster for the defendant/moving party Lance Fraser Hamilton
Esther J. Roche for the plaintiffs/responding parties
REASONS FOR DECISION
[1] The defendant Lance Fraser Hamilton (“Hamilton”) brings this motion for an order severing the issue of his liability from the remaining issues in this action. The plaintiffs are opposed to the relief sought. The defendant Robert Woodbury has been noted in default.
[2] Two new defendants have recently been added to this claim pursuant to the order of Master McAfee of November 28, 2013. The claims being advanced against the new defendants are in the nature of fraudulent conveyance claims. The amended statement of claim has apparently been issued but not yet served.
[3] One of the new defendants, Ms. Hamilton, appeared at the return of this motion. She is Hamilton’s spouse. Ms. Hamilton supports the position taken by counsel for Hamilton. The other new defendant, Ms. Woodbury, was not given notice of this motion as it was served before she became a party to this action. In my view, service of notice of this motion is not required in respect of Ms. Woodbury. The claims being advanced against her relate to events that took place after the events that give rise to this claim. Ms. Woodbury was not involved in the original events in any way. She will not be affected by the relief sought by Hamilton on this motion.
BACKGROUND
[4] The plaintiffs’ claims arise out of a tragic accident that took place on August 11, 2007. The plaintiff Nash Woodbury (“Nash”) was being towed on an inner tube attached to a boat operated by his father, the defendant Robert Woodbury (“Robert”) when the inner tube and Nash came into contact with a boat being operated by Hamilton. Nash suffered very serious injuries as a result of the accident. The plaintiffs are seeking $20,000,000.00 in damages.
[5] It appears that Hamilton’s boat was stationary or moving very slowly at the time of the accident. Hamilton had just left the dock and drawn a tow rope tight. Attached to the tow rope was an inner tube on which three children were waiting to go for a ride. In an effort to avoid a collision with Hamilton’s boat, Robert made a sharp turn and the inner tube carrying Nash swung around and collided with Hamilton’s boat. Nash was thrown from the inner tube and ended up face down and unconscious in the water. He was rescued by Hamilton and another individual on Hamilton’s boat.
[6] Robert was charged with careless operation of a small vessel, contrary to regulations under the Canada Shipping Act, 2001, S.C. 2001, c.26. The charge was dismissed at trial on June 2, 2008, as the Crown failed to lead sufficient evidence to identify Robert as the operator of the boat.
[7] This action was commenced on July 17, 2009. Hamilton’s defence was not filed until January 13, 2011. No affidavits of documents have been served and no discoveries have taken place.[^1] A motion for summary judgment was brought by Hamilton and heard on August 21, 2012 by Justice Ellies. On August 22, 2012, Justice Ellies released his endorsement dismissing the motion for summary judgment.[^2] As part of his endorsement, Justice Ellies found that:
[O]n the evidence adduced in the motion, it would be open to a judge or a jury at trial to find that Mr. Hamilton was negligent in either moving his boat towards the centre of the bay or in failing to notice the Woodbury boat earlier, or both.
[T]he interests of justice require a trial in order to determine whether the Hamilton boat should have been where it was at the time of the collision and why the Woodbury boat was not noticed until a matter of seconds before the accident.
[8] This motion was then served in September 2013 with a first return date of November 28, 2013. It was initially scheduled to be heard at the same time as the motion brought by the plaintiffs to amend their statement of claim. Unfortunately, the court did not have sufficient time to hear this motion on November 28, 2013. It was therefore adjourned to be heard by me on December 13, 2013.
THE POSITIONS OF THE PARTIES
[9] Hamilton takes the position that this is an appropriate case for bifurcation. He argues that the liability issues arising from the allegations made against him are discreet and straightforward. They can be dealt with easily and quickly. The damages issues, on the other hand, are obviously complex. The court’s assessment of Nash’s damages will take a significant period of time and involve a great deal of preparation along with the delivery of expert evidence. All parties will be put to great expense. Hamilton has no insurance for this claim and is paying for his defence out of his own pocket. Bifurcation would promote the just, most expeditious and least expensive determination of this claim.
[10] The plaintiffs argue that splitting the case would be prejudicial to them. They take the position that separate trials in respect of liability and damages would actually result in additional delay and extra expense for the plaintiffs. They point out that this action has already been delayed by Hamilton’s unsuccessful summary judgment motion. They rely on the principle that a plaintiff is entitled to have all of his claims determined in one trial.
ANALYSIS
A. JURISDICTION
[11] At the outset of the argument of this motion, I raised with counsel the issue of my jurisdiction. Hamilton’s notice of motion appears to rely on the court’s inherent jurisdiction as a basis for the order he is seeking. Rule 6.1 does provide a master with the authority to make an order for separate hearings. However, such an order can only be made on consent. That is obviously not the case on this motion.
[12] A master does not have inherent jurisdiction. However, there is authority for the proposition that a master can make an order for separate hearings when an action has been assigned to case management and the powers set out in Rule 77 are available. See Unwin v. Crothers, 2005 CanLII 23337 (ON SC), [2005] O.J. No. 2797 (S.C.J.) at paragraphs 67 and 68. The parties are not opposed to case management. I am therefore ordering that this matter be assigned to case management to be case managed by me pursuant to Rule 77.
B. BIFURCATION
[13] The court’s power to bifurcate a proceeding is a narrowly circumscribed one. It is the basic right of all litigants to have all issues in dispute in a proceeding resolved in one trial. Separate hearings should only be ordered in the interest of justice and in exceptional cases. See Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills, 1986 CanLII 2591 (ON CA), [1986] O.J. No. 578 (C.A.) at paragraph 11. The onus is on the moving party to show a clear benefit in terms of time and expense. See Unwin at paragraph 78.
[14] The primary factors to consider on a motion to bifurcate are set out in Bourne v. Saunby, [1993] O.J. No. 2606 (G.D.) at paragraph 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;
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;
[15] These are the factors and principles I have considered and applied in determining the issues on this motion. Having done so, I have come to the conclusion that Hamilton has met the onus placed upon him to demonstrate a clear benefit to the order sought. The relief requested on this motion should be granted.
[16] In my view, this is one of those rare and exceptional cases where bifurcation is warranted in the interest of justice. Hamilton’s potential liability to the plaintiff is a discreet and straightforward issue. It has been clearly and narrowly defined by Justice Ellies’ decision on the summary judgment motion, as set out above. Hamilton’s liability is obviously a separate issue from the question of the plaintiff’s damages. It would appear that none of the witnesses would be the same.
[17] The relative simplicity of the issues regarding Hamilton’s liability must be contrasted with the complexity of the damages aspect of this claim. Nash’s injuries are very serious. This is a $20,000,000.00 claim. An enormous amount of medical evidence will be necessary. The plaintiffs have already delivered 1,800 pages of medical documentation. Further medical examinations will be undertaken. Numerous medical/legal reports will be required. A great deal of time and money will be spent before this case is even close to being ready for trial.
[18] The issues surrounding Hamilton’s liability, however, can be made ready for trial in very short order. Minimal production and discovery will be required. It is likely that a trial of the issue will involve only a handful of witnesses and take only a few days at most. Bifurcation will result in very little further delay. Moreover, there is no reason why the plaintiffs cannot continue preparing their damages claim while the separate hearing on the Hamilton liability issue is progressing. Medical and other assessments can be conducted and reports can be prepared.
[19] The current status of this action also militates in favour of the order sought by Hamilton. Affidavits of documents have not been served. Medical documentation was first provided by the plaintiffs only a few weeks ago. No discoveries have taken place. A further delay will be inevitable in any event as a result of the recent addition of the new defendants.
[20] It is also my view that if Hamilton is successful on the liability issue, a significant savings of time and expense will be realized. Such a conclusion is obvious for Hamilton, as he will not be required to defend the damages aspect of this action. In addition, the claims against Ms. Hamilton will be rendered moot.
[21] In my view, the same is also true for the plaintiffs. As matters currently stand, the defendant Woodbury has not defended this action and has been noted in default. It is not known what position the new defendant, Ms. Woodbury, will take in response to the claims against her. It may very well be that the damages aspect of this claim will proceed on an undefended basis. That process would obviously be less expensive and less time consuming than a fully defended damages assessment.
[22] In Unwin, Justice Spies made reference to the decision of Master Dash in SNC–Lavalin Engineers & Constructors Inc. v. Citadel General Assurance Co., 2003 CanLII 64289 (ON SC), [2003] O.J. No. 310 (S.C.J. – Master). After reviewing a number of decisions where bifurcation had been ordered, Master Dash stated as follows at paragraph 18:
In each of those cases the court identified a very narrow and discreet liability issue which could be tried expeditiously and which, if determined against the plaintiff, would put an end to the action without a lengthy and complicated damages trial, would reduce costs and delay to the parties, and would conserve scarce judicial resources.
[23] In my view, the same can be said of this case. While a finding against the plaintiffs on the Hamilton liability issue would not put an end to the action, it would certainly result in a much less complicated and shorter damages assessment.
[24] I have therefore concluded that there will be little or no prejudice to the plaintiffs if bifurcation is ordered. Such an order would promote the just, most expeditious and least expensive determination of this claim. It is in the interest of justice to do so.
COSTS
[25] Hamilton has been successful on this motion and is entitled to costs. Both sides presented the court with costs outlines in the approximate amount of $3,000.00 on a partial indemnity basis. In my view, this amount is somewhat excessive for this motion. The motion was not complex. The law and the facts were straightforward. It took less than one hour to argue. In my view, it is fair and reasonable that the plaintiffs pay Hamilton’s costs of this motion in the amount of $1,500.00.
ORDER
[26] I therefore order as follows:
(a) this action is hereby assigned to case management to be case managed by me pursuant to Rule 77;
(b) Hamilton is hereby granted the relief requested at paragraphs (a) and (b) of his notice of motion; and,
(c) the plaintiffs shall pay Hamilton’s costs of this motion fixed in the amount of $1,500.00, inclusive of HST and disbursements, payable within 30 days.
Master R.A. Muir
DATE: December 16, 2013
[^1]: It appears that the plaintiffs have now delivered at least some medical productions. The productions were provided to counsel for Hamilton shortly before the initial return date of this motion in late November 2013. They total approximately 1,800 pages.
[^2]: Reported at 2012 ONSC 4817.