Duggan v. Durham Region Non-Profit Housing Corporation, 2017 ONSC 4875
CITATION: Duggan v. Durham Region Non-Profit Housing Corporation, 2017 ONSC 4875
COURT FILE NO.: CV-12-449431
MOTION HEARD: 20170508
REASONS RELEASED: 20170825
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN:
GAVIN DUGGAN Minor by his Litigation Guardian PHILLIP KNIGHT, and JESSICA KNIGHT and PHILIP KNIGHT
Plaintiffs
- and -
THE DURHAM REGION NON-PROFIT HOUSING CORPORATION
Defendant
BEFORE: MASTER D. E. SHORT
COUNSEL: Tripta Sood Fax: (416) 777-2050 -for the Plaintiffs
Shaneka Taylor Fax: (416) 368-1010 -for the Defendant
REASONS RELEASED: August 25 2017
Reasons for Decision
I. Overview
[1] This action arises out of an incident in which the Plaintiff, Gavin Duggan, then only four years old, apparently opened a sliding balcony door of a second floor rental unit owned by the Defendant (The Durham Region Non-Profit Housing Corporation), climbed up over a balcony railing, and fell 10-15 feet to the ground below. As a result of this fall, Gavin suffered an undisplaced skull fracture and a closed head injury.
[2] At the time of the fall, Gavin was unsupervised. While Gavin's mother, Jessica Knight was attending to a visitor, Gavin climbed onto a chair on the balcony, climbed over the railing and fell, striking a barbeque unit and then the patio of the neighbouring unit, below.
[3] At the material time, Ms. Knight leased the unit from the Defendant.
[4] It is alleged that the Defendant failed to install a functioning lock on the screen door to the balcony in the Unit and failed to keep the balcony, including its railing, safe for those using it.
[5] The Plaintiffs claim $1,000,000.00 in general damages. As well. Ms. Knight and Phillip Knight (Jessica's father) are claiming pursuant to the Family Law Act the combined sum of $200,000.00 for nursing and housekeeping services as well as out-of-pocket expenses relating to the incident.
[6] The Plaintiffs assert that Gavin's head injury has developed into a number of psychological, behavioural and developmental issues. These include increased aggression, hyperactivity, and cognitive deficits. To date, the full extent of Gavin's brain injury sequelae is unclear.
II. Motions
[7] The Plaintiffs bring their motion for an extension of date to set the within action down for trial from March 21, 2017 to March 31, 2020. They have done so on grounds that that additional time is required for experts to determine the prognosis and evaluate the damages sustained by Gavin, who is now 11 years old.
[8] The Defendant opposes this motion and has brought a cross-motion seeking an order bifurcating the trial on the issues of liability and damages so that they may set down the liability component. The Plaintiffs oppose the motion to bifurcate the trial.
III. Threshold Legal Issues
A: Does this Court have the jurisdiction to bifurcate trials without consent of all parties?
B: If this Court does have this jurisdiction to bifurcate trials without the consent of all parties, is this an exceptional case that warrants such bifurcation?
[9] The defendant argues that there would be no prejudice to the Plaintiffs if the trial of the action is bifurcated with the issue of liability being tried at an early date and the issue of damages deferred, perhaps until after March 31, 2020.
[10] As well the defendant Corporation asserts that there would be substantial prejudice to the Defendant if the matter is not set down for trial and the issue of liability adjudicated upon in a reasonable time.
[11] The Corporation intends to call 5 witnesses at trial on the issue of liability, including “two key witnesses” who retired from the Corporation in 2012. Apparently, one witness is elderly and has uncertain health conditions. Furthermore, they assert that the longer the time on liability is delayed, the more likely it is that the liability witnesses will have an independent recollection of the events in issue.
[12] The Defendant contends that the liability witnesses, with the exception of two of the Plaintiffs (the minor Plaintiff Gavin Duggan, is reported to have no memory of the circumstances of the accident), will not be required to attend the trial twice to give evidence if the matters are heard separately.
[13] Their position is that the interest of justice and balance of fairness requires that the Trial Judge have the benefit of receiving true, independent recollection of events from witnesses at a time as contemporaneous to the events giving rise to the cause of the action as possible. “Bifurcation of the trial is the best means by which to achieve that result.”
[14] Further, they anticipate that the issue of the appropriate quantum of damages will take substantially more time to adjudicate, than the issue of liability.
[15] It is clear that a substantial amount of the trial time will be expended on proving damages. The defendant submits that if bifurcation of the action with a trial of liability in the near future and a trial on damages at a later time, when the long term effects of his injuries are better known, will result in a significant savings of time and costs to all the parties and would best serve the overall interests of justice.
[16] I am not convinced that the question of my having jurisdiction to bifurcate the action has an obvious yes or no answer. Before weighing that decision I first need to address the key factual and evidentiary issues in play in this case.
IV. Probable Witnesses and Issues
[17] The Defendant says it plans to call three lay witnesses and two expert witnesses at the trial dealing with the issue of liability.
[18] In contrast, it is expected that the Plaintiffs will call medical, rehabilitation specialists and educational witnesses at trial to testify on the issue of damages, particularly how the brain injury which Gavin allegedly sustained as a result of the fall, has and will continue to, impact his life into adulthood, which the Defendant will be required to respond to.
The plaintiffs’ counsel suggests that there may be a number of fact witnesses who could address the liability issue. These could include independent witnesses, such as the next door neighbours of the Ms. Knight at the material time. However, I do not see much likelihood of an overlap of these witnesses on the quantum issue.
What needs to be proven?
[19] The Examinations for Discovery took place on October 29, 2015 and February 22, 2016.
[20] Loma Ritchie testified on behalf of the Defendant that:
- At the time of the fall, Ms. Ritchie was a Property Manager with the Defendant.
- She managed 57 Enzo Crescent in 2010 and had two superintendents, John and Sandra Lublinkhof.
- Both Mr. and Mrs., Lublinkhof retired from the Corporation in 2012 and thereafter moved to Sudbury, Ontario (where they have since advised me and I verily believe, they continue to reside). Mr. and Mrs. Lublinkhof are elderly. Despite our asking, Mr. Lublinkhof has declined to disclose any aspect of his current health circumstances. Ms. Ritchie has also since retired.
[21] On discovery Ms. Ritchie stated that she conducted the move-in inspection of the Unit with Jessica in August 2008 and that the only deficiency advised by Ms. Knight at that time was a malfunctioning closet door in the master bedroom and bolts that required tightening on the balcony. A few weeks after that inspection, Mr. Lublinkhof changed the lag bolts on the balcony to appease Ms. Knight even though he did not find that they were in fact loose.
[22] During the Discovery of the Plaintiff, Jessica Knight stated that:
- She moved into the Unit on August 1, 2008;
- She was present during the move-in inspection and she signed off on the acceptability of the Unit;
- In August 2008, she requested repairs to the balcony and sliding glass door in the Unit and John Lublinkhof undertook those repairs;
- The Unit was inspected annually by the Defendant and she did not complain about the condition of the balcony or the sliding door, whether glass or screen, during the 2009 or 2010 inspections;
- Gavin frequently climbed on things like furniture before the fall, including, on an occasion a few weeks before the fall, when he pulled up a chair to the refrigerator and climbed on top of the refrigerator. In another incident, which happened approximately 18 months earlier, Gavin climbed on a chair onto the counter in the bathroom, stood on it, took out a Tylenol #3 bottle stored in the cabinet above the sink which was not properly closed and ingested some Tylenol #3;
[23] Gavin had a lack of safety awareness prior to the fall; and Gavin has no memory of the circumstances surrounding the fall (and, as such, will not need to testify at the liability portion of the trial).
[24] The parties have gathered all the necessary evidence required to deal with the issue of liability including the following records:
(a) Complete unredacted file of Durham Regional Police Services; (b) The Corporation of the Township of Uxbridge records relating to a property standards investigation; (c) Durham Region Non-Profit Housing Corporation inspection and repair records pertaining to the Unit; and (d) Lease Agreement between the Defendant and Jessica Knight.
[25] Expert reports on liability have already been exchanged. The Plaintiffs have retained an expert to opine on whether the state of repair of the sliding glass door and balcony met the requirements of the applicable laws and bylaws. With respect to liability, the Defendant retained consulting engineers and an expert in child safety who is a “certified childproof professional” that was retained to opine on whether the locks on both the screen and sliding glass doors were adequately child proof.
[26] Her opinion is that:
“It is not reasonable to think that latching mechanisms which come in the screen and glass sliding doors are "childproofed." It should never be considered that a child at the age of 4 is not able to open any latch that an adult can open. It is up to parents or caregivers to know that children are not able to understand what is hazardous to their safety. They need to take into account that children's lack of prior experience and therefore curiosity to learn what things do, lead them into experiment with everything around them. To keep children safe, parents need to physically take away the hazard. When this is not possible, then they need to take additional measures to make it difficult for a child have the opportunity access the danger as well as supervise them. While it is not humanly possible to supervise at all times, parents should not rely on a product to stop a child from getting hurt. It is important that parents and caregivers understand that products can assist in deterring children but we cannot predict when a child can defeat a device.”
[27] An engineering firm was also retained to opine on building code requirements of exterior sliding screen doors and to comment on the report of the plaintiff’s expert, dated June 2, 2015.
[28] The author of the Defendant’s engineering report is apparently a former municipal building inspector, property standards inspector and building code consultant. In her opinion:
- The Ontario Building Code in effect at the time of the construction of the building, and even the Building Code in effect for new construction today, does not require any locking mechanism on an exterior sliding screen door;
- The Ontario Building Code does not regulate placement of furniture or objects on a balcony that could facilitate climbing;
- The lock on the glass patio door would meet the requirements of the Property Standards by-law, which required all exterior doors to have suitable hardware so as to allow locking or otherwise securing from inside the dwelling unit. The purpose of the lock is to prevent unauthorized entry into the dwelling unit. It is not intended to prevent access of a person onto a balcony; and
- Regarding the condition of the guard, it is notable that requests for repairs were made on September 16, 2009, November 19, 2009, May 3, 2010, and June 3, 2010, and no issues with the balcony guard were raised. A request for repairs was made August 20, 2008, and new lag bolts, washers and nuts were noted to be installed on September 4, 2008. The notch in the top rail would prevent the guard from moving outward. (my emphasis)
Locating the Players
[29] The Defendant's two key witnesses are John and Sandra Lublinkhof, the former superintendents with the Defendant at the time of Gavin's fall. Mr. Lublinkhof carried out various repairs to the Unit prior to and after Gavin's fall. His evidence will be central to the determination of liability in this action. The Lublinkhofs currently reside in Sudbury.
[30] The defendant asserts that Mr. Lublinkhof is an elderly gentleman who is in poor health. They submit that given “his age and the uncertainty of his health, it would be prejudicial to the Defendant if this action is not set down for trial and the liability portion of the action tried as soon as possible.”
[31] Memory fades over time. It has already been nearly 7 years since Gavin's fall in September 2010. The Defendant’s factum asserts:
Even if Mr. Lublinkhof's heath does not significantly impair his ability to testify at trial, it is very likely that his recollection of the events that transpired in 2010, including the interactions that he had with the Plaintiffs, will be substantially eroded by 2022 or a year or even more, which is the earliest that the trial would likely be scheduled if the action was not set down until March 31, 2022.
[32] Conversely, counsel for the plaintiff asserts that if, as the Defendant claims, there is a concern “that two of its witnesses may be unavailable at trial (although this allegation is unsubstantiated), it is open to the Defendant to offer such witnesses to be examined under oath prior to trial. This has not been done.”
[33] Rule 36.01 of the Rules of Civil Procedure, the evidence of a non-party witness may be taken in advance of trial. Rule 36.01(2) provides that: “a party who intends to introduce evidence of a person at trial may, with leave of the court or the consent of the parties, examine the person on oath or affirmation before trial for the purpose of having the person's testimony available to be tendered as evidence at the trial.” However I am not satisfied that such an approach would be appropriate at this stage of the present case. Viva voce evidence is always to be preferred.
[34] I accept that neither side is contributed to any undue delay to this stage of the action. However when this action commenced in 2012, the time period for setting a matter down for trial was two years. Since then, the Rules Committee has seen fit to extend the normal time limit for setting an action down for trial to five years. It seems to me that while these time limits obviously cannot applied every case. To allow an action to continue for eight years before it needs to be set down for trial, with the anticipation that over a further period of one to two years will be required before a long trial could hope to be heard, is, in my view, stretching the definition of “trial within a reasonable period of time.” Particularly where rule 48.14 (4) now indicates a restriction on a consent timetable which limits the set down date extension to “no more than two years” after the existing time period would have otherwise expired.
V. What should be or can be done?
[35] The moving defendant asserts that it would be highly prejudicial to the Defendant for the trial judge to receive evidence that may be tainted by severely faded memory which is likely to occur if the parties are forced to wait three years for the action to be set down and an additional one or two years wait on the Long Trials list before it is actually tried.
[36] I find some merit in their submission that the balance of fairness and the interest of justice requires that the trial judge have a true, independent recollection of events from the witnesses at trial as contemporaneous to the events that transpired, as possible. I agree that an early consideration of the causation of the plaintiff’s injuries is more important to the interest of justice than the inconvenience to the Plaintiffs in having to attend trial twice, particularly when there will be no significant overlap in the relevant evidence, if the trial is separated.
[37] Having concluded that a bifurcation in this case would be reasonable, I turn to a consideration of whether I have the jurisdiction to make such a determination.
VI. Issue A: Does this Court have the jurisdiction to bifurcate trials without consent?
[38] Section 138 of the Courts of Justice Act specifically mandates the overarching principle that "as far as possible, a multiplicity of proceedings shall be avoided",
[39] Particularly Rule 6.1.01 of the Rules of Civil Procedure reads as follows:
With the consent of the parties, the court may order a separate hearing on one or more issues in the proceeding, including separate hearings on the issues of liability and damages. [my emphasis added].
[40] What if there is no consent? I note that prior to the enactment of this rule in 2010, the Ontario Court of Appeal confirmed that there is no jurisdiction to Order bifurcation in a jury trial unless all parties consent. The court noted that this is in the interests of fairness and justice, and that it would avoid multiplicity of proceedings and preserve court resources. (see Kovach (Litigation Guardian of) v Kovach, 2010 ONCA 126, at paras 37 and 42).
[41] Counsel for the plaintiffs observes that the Court spoke in obiter with respect to the purpose of Rule 6.1, which had been enacted between the trial and Court of Appeal stages. Particularly the Court noted that, practically speaking, it would be impossible for a judge at the motion stage to accurately predict whether or not there would overlapping evidence in relation to the issues of both liability and damages.
[42] Since the enactment of Rule 6.1, a divided panel of the Divisional Court in Bondy-Rafael, et al. v. Potrebic, et al., 2015 ONSC 3655, has held that the Court has no jurisdiction to order bifurcation in the absence of consent of all parties. There at paras 25-26, Justice Molloy, reviewed the state of the law in transition:
[25] I do not take the Court of Appeal's reference to Rule 6.1.01 in Kovach as binding in the case now before this Court. The Court was clear in Kovach that the new Rule did not apply. However, the decision is nevertheless of persuasive value. It seems to me that the Court was of the view that the new Rule would take precedence over previous custom with respect to a judge's inherent jurisdiction, and that the clear intent of the Rule was to require consent before any trial could be bifurcated, whether jury or judge alone. The Rule itself makes no distinction between a jury trial and a non-jury trial. If the effect of the new Rule is that there can be bifurcation of a jury trial, but only on consent of all parties, that effect must apply equally to all trials, whether jury or non-jury.
[43] While it seems to me that very different factors need to be weighed in scheduling a jury trial, as opposed to a trial by judge alone, I have to respect the decision of a higher court, if it is binding upon me, unless there is contrary authority.
[44] In Bondy-Rafael Justice Molloy applies a restrictive reading to the amendments to the rule. She finds that this wording appears to preclude a bifurcation Order without consent in a non-jury matter:
[26] In my view, such an interpretation is also consistent with a plain and ordinary reading of the Rule. The Rules Committee clearly intended to impose a Rule as to when a judge has the power to exercise a discretion with respect to bifurcation of a trial. That discretion, according to the Rule, only arises where the parties consent. I find this to be a clear and unambiguous direction that ousts the prior inherent jurisdiction of the court. It does not matter whether one applies the test of whether the Rules can be said to "occupy the field," or whether it is "clear and unambiguous." On either articulation of the test, it is met. The language is clear and unambiguous. The Rule occupies the field. Making an order for bifurcation without the consent of the parties would conflict with the Rule. On any test, the inherent jurisdiction of the Court is ousted.
[27] As I have stated, neither the Elcano nor Kovachs decisions deal precisely with the issue now before this Court. There would appear to be no Court of Appeal decision squarely on point. However, a number of judges of the Ontario Superior Court have dealt with the issue. All but one judge found no power to order bifurcation in the face of an objection by one of the parties.
[45] However, Justice Molloy does not appear to have had an opportunity to address the overall guidance being provided by the Supreme Court of Canada shortly before she reached her conclusion.
[46] In Hryniak v. Mauldin, 2014 SCC 7, Justice Karakatsanis was discussing the test for summary judgment, but what she had to say is thematically applicable to lifting these stays. At paragraphs 27 and 28 of her judgment at the Supreme Court of Canada, she stated:
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.
This requires a shift in culture. The principal goal remains the same: a fair process that results in a just adjudication of disputes. A fair and just process must permit a judge to find the facts necessary to resolve the dispute and to apply the relevant legal principles to the facts as found. However, that process is illusory unless it is also accessible, proportionate, timely and affordable. The proportionality principle means that the best forum for resolving a dispute is not always that with the most painstaking procedure. [my emphasis]
[47] Counsel for the Defendant asserts that this Court has inherent jurisdiction to bifurcate the trial. Relying upon the decision of the Ontario Court of Appeal decision in Elcano Acceptance Ltd. v. Richmond, 1986 2591 (ON CA), 55 OR (2d) 56 , he asserts that, that court made it clear that this court has inherent jurisdiction to order bifurcated trials where the interest of justice requires it.
[48] Counsel argues that while the decision in Elcano pre-dates the enactment of Rule 6.1.01, the principles enunciated by the Court remains the same. “Rule 6.1.01 does not remove the court's inherent jurisdiction to order separate hearings on liability and damages in the clearest of case.”
[49] In a 2014 decision, Glasjam v. Freedman, 2014 ONSC 3878, Master MacLeod, as he then was, considered these issues and observed:
[77] There has been a move in recent years towards unbundling trials as it is increasingly recognized that applying the full forensic mechanism of the traditional trial to every issue simultaneously produces unwieldy and unaffordable trials. Rule 6.1 was recently enacted to provide that the parties may agree on separate hearings of one or more issues in a proceeding. This result may also be ordered by the court in the exercise of its inherent jurisdiction. The rules now specifically provide for orders for trial of individual issues through the mechanism of a summary judgment motion or an order made at pre-trial under Rule 50.07.
[50] Rule 50.07 sets out the powers of a presiding judge or case management master at a pretrial conference. As well, I note that rule 20.01 allows either side to “move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.” Obviously, granting such a motion would result in a bifurcation of the issues on a summary judgment motion. Rule 20.05 (1) sets out the powers of the court and reads as follows:
“Where summary judgment is refused, or is granted only in part, the court may make an order specifying what material facts are not in dispute in defining the issues to be tried, and order that the action proceeded to trial expeditiously.”
[51] Master MacLeod continued in his reasons in Glasjam to observe:
[78] The recent Supreme Court of Canada decision in Hryniak v. Mauldin now stands as authority that a culture shift is necessary in which the court should mandate streamlined focused and targeted processes for adjudication eschewing the view that full trials of every issue are the best guarantee of fairness. Hryniak is of course dealing with summary judgment and not joinder but the principles are important. Procedural orders that increase the complexity and expense of litigation reduce access to justice in a very real way. Moreover as summary judgment motions are often focused on a single critical issue such as liability, contract interpretation or the passage of a limitation period, the ringing endorsement of robust and creative use of even a failed summary judgment motion to fashion trial of an issue has implications for motions such as this.
[79] In essence the Supreme Court is reminding judicial officers charged with interpreting and administering the rules of the prime directives set out in Rule 1.04 (1) and (1.1). Vigorous attention to considerations of litigation efficacy and proportionality mandates the court to avoid orders that make litigation less nimble and efficient. [my emphasis]
[52] There are no post-2010 Ontario Court of Appeal cases dealing directly with the issue of the court's inherent jurisdiction to bifurcate a trial under Rule 6.1 except the decision of Kovach (Litigation Guardian of) v. Kovach (2010) ONCA 126 (discussed below) which briefly mentioned the rule but found that it had no application.
[53] The Divisional Court in Bondy-Rafael was not unanimous in its interpretation of the Rule and the Defendant submits that the persuasive dissenting decision of Justice Corbett in Bondy-Rafael should be preferred to that of the majority.
[54] In his dissent, Justice Corbett found that the plain meaning of Rule 6.1 did not entirely oust the court's inherent jurisdiction to control its own process. He further noted that the language of Rule 6.1 is permissive not exclusive, particularly given the gaps in the statutory framework that is commonplace in personal injury actions.
[55] Justice Corbett disagreed with the majority's interpretation of Kovach noting that there is nothing in Kovach which concludes that Rule 6.1.01 completely ousts the court's jurisdiction as interpreted by the majority.
[56] Notwithstanding the majority's views of the matter, Justice Corbett makes it clear that bifurcation orders, though rare, continue to be made since Rule 6.1 came into force in 2010 and without any suggestion that the court's inherent jurisdiction to make the order is in any doubt. He specifically refers to the 2014 decision in Woodbury v. Woodbury 2012 ONSC 3030 where the Master Muir severed the liability and damages issues in a personal injury matter similar to the one at bar. That decision was upheld on appeal by Justice E.M. Morgan in Woodbury (Litigation guardian of) v. Woodbury, 2014 ONSC 3149.
[57] Justice Morgan’s reasons read in part:
….I understand that there have not yet been examinations for discovery, but that the Plaintiff has now delivered a medical brief containing evidence on the damages issue that runs roughly 1,800 pages. Master Muir held, at para 17 of his endorsement, that, "[t]he 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." He went on to find, at para 18, that unlike a trial on damages, "[t]he issues surrounding Hamilton's liability, however, can be made ready for trial in very short order."
The Master acknowledged that bifurcation is not an approach to be adopted lightly. Citing Elcano Acceptance Ltd. v Richmond, Richmond, Stambler & Mills, 1986 2591 (ON CA), [1986] OJ No. 578, at para 11 (Ont CA), he stated that, "[s]eparate hearings should only be ordered in the interest of justice and in exceptional cases." He then went through a list of 14 factors established in Bourne v Saunby, [1993] OJ No 2606, at para 30 (Gen Div), for consideration on a question of bifurcation, emphasizing that "a significant savings of time and expense will be realized" for both parties if bifurcation is ordered. [paras 20-21]
With that in mind, the Master opined, at para 16, that "this is one of those rare and exceptional cases where bifurcation is warranted in the interest of justice."
[58] I confirm that I have used the same approach to reach a similar conclusion in this case including considering the Bourne factors considered in Justice Morgan’s reasons:
This Court held in Wang v Byford-Harvey (2012), 2012 ONSC 3030, 110 OR (3d) 703, at para 72, that the factors listed in Bourne to which Master Muir averred, can effectively be summarized in a single overarching proposition: bifurcation, although rare, should be ordered where "it would be the most just, cost effective and expeditious use of time and judicial resources to have separate hearings on liability and damages".
Having examined this litigation in light of the Bourne criteria, the Master concluded that this is indeed an extraordinary case. The issues of liability were determined to be not only separate and distinct from damages, but simple in the extreme compared to the obvious complexity of the damages issues. He perceived the specific issue of causation (the only one identified as triable in the ruling by Ellies J.) as entirely unrelated to the damages question.
[59] In my assessment, the witnesses in the two portions of the proceeding are almost entirely different. The issue of damages will require a complex and lengthy trial that can easily be severed from the issue of liability, and as a consequence, the parties will all benefit from the potential savings of time and cost entailed in trying the liability issue first ….”
[60] In my view. My approach is the same as that capsulized by the judge on appeal:
“20. Having reviewed all of the Bourne factors, the Master reasoned that this fits the category of "the clearest cases", as Morden JA put it in Elcano, at para 11. The Master was of the view that Mr. Hamilton, as moving party, had satisfied "the onus of demonstrating that there is a clear benefit to be gained, in terms of time and expense, from severing an issue from the trial...", and that "[t]he evidence filed by [the] moving party in support of its motion for a bifurcation order [was] extraordinary and the circumstances of the case...show that the preponderance of factors justify the court in departing from the general rule that all issues relating to litigation should be determined at the trial": Unwin v Crothers (2005), 2005 23337 (ON SC), 76 OR (3d) 453, at paras 78-79 (SCJ).
[61] On the same basis as my colleague, I have determined that, using the words of Rule 1.04(1) of the Rules of Civil Procedure, bifurcation is the only way “to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
[62] My reading of the genesis of Rule 6.1 was intended to enhance the court's ability to fashion flexible and proportionate procedures, not to curtail the reasonable exercise of the court's inherent jurisdiction to promote justice. I believe that this interpretation accords with the guidance of the Supreme Court in Hryniak.
[63] I am encouraged in this interpretation by the consideration of Justice Corbett's dissent in Bondy-Rafael by then Justice MacLeod in Campbell v. Campbell, 2017 ONSC 1682. In my view the law in this area is clearly presently in a state of flux. Justice MacLeod’s decision in Campbell was released less than two months before this matter was heard, and I find support for my decision in his reasons:
The respondents sought to rely on the decision of the Divisional Court in Bondy-Rafael v. Potrebic" to the effect that unless all parties consent, a party is entitled to have all issues determined in a single action. I do not agree that decision stands for such a universal proposition or prevents the granting of an appropriate remedial order.
In the first place, Bondy-Rafael was rendered by a split court with a powerful dissent concurring in the result and it dealt with Rule 6.1 of the Rules. It is a decision that is intentionally restrictive in its application and it does not apply to the case at bar. Insofar as the case stands for the proposition that Rule 6.1 of the Rules of Civil Procedure excludes any inherent jurisdiction to bifurcate an action, for purposes of this motion I do not have to decide whether that conclusion is binding upon me in similar circumstances. I would observe in passing that I prefer the analysis of Corbett J. to that of the majority. Justice Corbett's analysis of the rule is not only consistent with current judicial trends but with the rationale for enacting the rule. As it happens 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 Rules Committee to "occupy the field" or to restrict the inherent jurisdiction of the court.
[64] I note as well that in her December 2016 decision in Aprile Estate v. Aprile, 2016 ONSC 7898 Justice Molloy reviewed her decision in Bondy-Rafael and provided the following comments with respect to a pending corporate dispute:
[10] Rule 6.1.01 did not come into force until 2010. The issue of bifurcation under that rule has not been dealt with by the Divisional Court in the context of an oppression case. There was a vigorous dissent in Bondy¬Raphael, which was a personal injury action. There are important issues involved with respect to the general principles of: the desirability of finding the most expeditious and least expensive ways of resolving disputes and whether bifurcation frustrates or facilitates that; the desirability of promoting early settlement and whether that can be fully informed without complete disclosure at an early stage; whether different principles for production should be applied in commercial litigation; and the burden on parties of complicated and expensive document production that might prove to be pointless if there is no finding of oppression. These principles have broad impact beyond the issues in this particular case. This is an area of the law that could benefit from appellate guidance. [my emphasis added]
[65] While Justice Molloy’s decision in Aprile Estate was originally subject to an appeal, which might have provided such guidance, earlier this month my colleague Master M.P. McGraw noted in Holbrook v. FX Displays Packaging Logistics Inc., 2017 ONSC 4757 at para. 5, that leave was granted to appeal to the Divisional Court but that at the June 19 case conference, counsel advised that the Aprile action had settled and the appeal was abandoned.
[66] Based upon the foregoing, I am satisfied that, in appropriate circumstances, that this court does have inherent jurisdiction to bifurcate the trial of liability and damages in this action.
VII. Issue B: Only “Exceptional Cases” Warrant Bifurcation
[67] I therefore turn to considering the burden of proof to support bifurcation without the consent, and whether has the Defendant met this burden.
[68] I accept that the Court of Appeal decision in Elcano Acceptance Ltd. et al v. Richmond, Richmond, Richmond, Stambler & Mills, 1986 2591 makes it clear that the Rules generally contemplate one trial. Thus, bifurcation is only granted in exceptional cases, and the power to bifurcate a trial must be regarded as a narrowly circumscribed power.
[69] The case law outlined previously in these reasons , and particularly the tests set out in the 1993 decision of Justice Tobias in in Bourne v. Saunby 23 C.P.C. (3d) 333; 49 M.V.R. (2d) 65; 43 A.C.W.S. (3d) 724; 1993 CarswellOnt 490 have been carefully considered by me.
[70] As well I adopt the analysis of Justice Colin Campbell in Morniga v. State Farm Mutual Insurance Co., [2002] O.J. No. 2094; 26 C.P.C. (5th) 143 at paras 18-19 .Given that a substantial amount of the trial time will be expended on proving damages and the long trial backlog in Toronto, bifurcation of the trial will result in a significant savings of time and costs to all the parties and a determination of liability will assist in the settlement prospects of the action. This factor in my view weighs heavily in favour of bifurcation.
[71] I believe there is a reasonable chance that the result of a separate trial on liability will put an end to the action or facilitate the resolution of the damages claims.
VIII. Issue C: Has the Defendant met the high burden of proof to justify Bifurcation
[72] The onus of proving that bifurcation of the action should be granted rests with the party requesting it. The moving party bears the onus of demonstrating that there is a clear benefit to be gained in terms of time and expense. Bifurcation should only be done in the clearest of cases. (see O'Brien v Universal Workers Union (LIUNA, Local 183) 2015 ONSC 7005, at para 37).
[73] This is a high burden. I recognize as well that the evidence filed by the moving party in support of bifurcation must be "extraordinary", particularly when the other party objects to the bifurcation. ( see Unwin v Crothers, 2005 23337 (ON SC), [2005] OJ No 2797,at paras 78-79)
[74] Nevertheless, considering the guidance as well in Soulliere (Litigation guardian of) v. Robitaille Estate, 2013 ONSC 5073, I am still satisfied that this is an appropriate case for bifurcation.
IX. Issue D: Delay Issues
[75] The defendants resisted the Plaintiff’s request for an extension of the set down date.
[76] However I am satisfied that, in the case at hand, there has been no such inordinate or inexcusable delay caused by the Plaintiffs. This action was commenced in 2012 and the Plaintiffs have moved this matter forward appropriately. Moreover, where the Plaintiff was four {4) years old at the time of the accident, the limitation for bringing a claim herein would not have expired until his 20th birthday. Had he wanted to bring this claim at that time, the Defendant would have had no argument about delay. Moreover, the Defendant has not proffered any evidence to suggest the Plaintiffs have caused any undue delay, such that there is no presumption of any prejudice whatsoever to the Defendant.
[77] The only prejudice established relates to the aging of the Defendants fact witnesses which is being addressed by my granting of bifurcation. As a consequence I am inclined to grant the Plaintiff’s request for an extension of the set down date to March 31, 2020, but on terms.
X. Term of Extension Rule 48 .14
[78] When this action was commenced in 2012, the former Rule 48.14 required that an action be set down for trial within two years after the filing of the first statement of defence. That rule was amended so that as of January 1, 2015, the timeline for a dismissal for delay was changed to five years from the commencement of the action.
[79] One objective of the Rules of Civil Procedure is that an action be resolved expeditiously. In Langenecker. v. Sauve, 2011 ONCA 803 the Ontario Court of Appeal has recognized that there is inherent prejudice in inordinately delaying the adjudication of actions as "memories fades, witnesses become unavailable and documents and other exhibits are lost". The Court further noted that the longer the delay, the stronger the inference of prejudice to the defence.
[80] My approach in this case has been guided, as is required by the Rules of Civil Procedure by the provisions of rule 1.04:
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[81] When the time for setting down an action was extended from two to five years related amendments were made to Rule 48.14. In particular subrules 48.14 (4) through (7) read in part:
(4) Subrule (1) does not apply if, at least 30 days before the expiry of the applicable period referred to in that subrule, a party files the following documents:
- A timetable, signed by all the parties, …
- A draft order establishing the timetable.
Status Hearing
(5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing. '
(6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing.
(7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may,
(a) dismiss the action for delay; or
(b) if the court is satisfied that the action should proceed,
(i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time,….
or
(iv) make such other order as is just.
[82] As the parties had not consented to a timetable, this motion. In part, was in effect a status hearing. As indicated above, I am prepared to make the extension order sought on terms.
[83] In the event that I otherwise lacked jurisdiction to make a bifurcation order by virtue of the current state of the law in Ontario, I am also exercising my jurisdiction under Rule 48.14 (7)(b)(iv) to grant the extension for the setting down of this action to March 31, 2020, on the condition that they matter proceed on a bifurcated basis. I regard such an order as “just” in the circumstances.
[84] If such an order is found to be inappropriate, I note that I still regard the three-year extension as reasonable in the circumstances of this case.
XI. Disposition
[85] For the reasons set out above, I am therefore granting Orders:
- Extending the deadline to set the action down for Trial be extended to March 31, 2020;
- Allowing the Bifurcation of the trial of the issues of liability and damages as sought by the defendant.
- Directing that the severed the liability portion shall have a new set down date of June 30, 2018. If that portion of the action is not set down by that date the Bifurcation order shall lapse.
[86] Because of the current state of the law, I regarded these issues as uncertain, and in many respects saw this as a “test case.” Success has been divided. The plaintiff obtained its extension over the opposition of the Defendant. Conversely, the defendant has achieved the Bifurcation it sought over the opposition of the Plaintiffs.
[87] Having considered the nature of this case, in all the circumstances involved, I determined that the most appropriate disposition of these motions is that there will be no order as to costs.
[88] I thank both counsel for their detailed competent assistance in addressing this enigma.
Released: August 25, 2017
R.184
Master D. E. Short