Duggan v. Durham Region Non-Profit Housing Corporation, 2018 ONSC 1811
2018 ONSC 1811
COURT FILE NO: CV-12-449431
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GAVIN DUGGAN Minor by his Litigation Guardian PHILLIP KNIGHT, and JESSICA KNIGHT and PHILLIP KNIGHT
Plaintiffs, Appellants
– and –
DURHAM REGION NON-PROFIT HOUSING CORPORATION
Defendant, Respondent
Thomas J. Hanrahan, for the Plaintiffs, Appellants
Shaneka Taylor, for the Defendant, Respondent
HEARD: February 26, 2018
J. WILSON J.
The Appeal
[1] On August 25, 2017, Master Short ordered the bifurcation of the liability issues from damages in this non-jury trial, notwithstanding that the Plaintiffs did not consent (“the Decision”). The Plaintiffs appeal the Decision.
[2] This appeal raises the issue of the intended scope of the amendment to Rule 6.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. This Rule was brought into force in 2010 as part of the package of reforms following the appointment of former Associate Chief Justice Coulter Osborne to the Civil Justice Reform Project (the “CJRP”). The focus of the CJRP was a comprehensive review of changes to be made to the civil justice system to promote accessibility and affordability.
Rule 6.1.01 provides:
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.
[3] Justice Osborne’s report states:
While I view bifurcation to be the exception, cost considerations militate in favour of bifurcation in some cases. In commercial litigation, for example, when dealing with damages will expose a party and sometimes all parties to significant costs, it may make sense to separate the issues of liability and damages and deal with liability first. Upon the determination of one issue, parties may be inclined to settle the balance of the issues in dispute. This can result in a significant savings of time, money and judicial resources. It would also be of particular benefit to those litigants who cannot afford a trial of all issues.[^1]
The Issues
[4] Prior to the passage of Rule 6.1.01 long established case law confirmed that the court has limited inherent jurisdiction, to be exercised in exceptional circumstances to order bifurcation of issues in non-jury trials. No such jurisdiction existed for a bifurcation order in jury trials.
[5] The Plaintiffs argue that the inherent jurisdiction for non-jury trials to bifurcate ended with the passage of Rule 6.1.01 and therefore the Master had no jurisdiction to make the order for bifurcation in this non-jury trial without the consent of the Plaintiffs. The plaintiffs rely on the obiter analysis in the majority decision of the Divisional Court in Bondy-Rafael v. Potrebic, 2015 ONSC 3655, 128 O.R. (3d) 767 (Div. Ct.). I note by way of foreshadowing, that unlike this case, Bondy-Rafael was a jury trial.
[6] The Plaintiffs argue, in the alternative, that if the Master had jurisdiction, that the evidence in support of bifurcation was not adequate.
Standard of Review
[7] It is conceded that the question of jurisdiction is a question of law, and the standard of review for this aspect of the appeal is that of correctness.
[8] For issues of mixed fact and law, the standard of review is whether there is palpable and overriding error (See: Zeitoun v. Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131, at paras. 40-42 (Div. Ct); aff’d 2009 ONCA 415, 96 O.R. (3d) 639.) A Master’s decision will only be interfered with if the Master made an error of law, exercised his or her discretion on the wrong principles, or misapprehended the evidence.
Overview
[9] In September 2010 the infant plaintiff, then four years old, opened what is alleged to be a defective sliding door on the balcony of the rental unit and fell 10 to 15 feet to the ground below. He suffered a skull fracture and a closed head injury. This action was initiated in 2012. The Plaintiffs assert that the defendant is liable for the accident. The defendant, Durham Regional Non-Profit Housing Corporation, alleges that the mother is responsible for this accident for failing to adequately supervise her child. The infant plaintiff is now 11 years of age, and the full extent and sequelae of his brain injury is unclear.
[10] The Rules of Civil Procedure require actions to be set down for trial by the fifth anniversary of the commencement of the action under Rule 48.14(1).
[11] Both parties sought relief before Master Short to address this situation.
[12] The Plaintiffs sought an extension of time to set this non-jury matter down for trial to 2020, as the extent of the infant Plaintiff’s damages could not be accurately assessed for several years yet to come.
[13] In response to the Plaintiffs’ request for an extension of time, the Defendant sought an order for the bifurcation of the liability and damages issue.
[14] In the Decision, Master Short allowed both requests: the Plaintiffs’ request for the extension of time to set this matter down for trial to 2020, and the Defendant’s request for the bifurcation of liability from the damages issues notwithstanding that the Plaintiffs did not consent to the bifurcation order.
[15] The Master ordered that the liability issues be set down for trial by June 30, 2018, or the order would lapse.
Analysis
Alternative Argument
[16] I deal first with the alternative argument.
[17] If the Master has jurisdiction to make a bifurcation order in non-jury cases absent the consent of all parties, I conclude that there is no merit to the Plaintiffs’ argument that there was inadequate evidence to support the request for the order made.
[18] First, no challenge was made before the Master as to the adequacy of the evidence, and such an argument cannot be raised for the first time on appeal. (See: John Sopinka, Sidney N. Lederman & Alan W. Bryan, The Law of Evidence in Canada, 4th ed. (Toronto, ON: LexisNexis) at 2.98.)
[19] Further, I find that on the undisputed facts of this case, a bifurcation of the issues is in the interests of justice for these Plaintiffs, particularly the infant Plaintiff.
[20] The Plaintiffs asked for an extension of time to set this matter down for trial until 2020. The slim affidavit material in support of the extension request sworn by the solicitor on the file, suggests that the prognosis of the damages cannot be assessed until the child is 15 – extending the time to 2021. During argument, counsel suggested that timeline may be even longer.
[21] This trial will not be heard for some time after the matter is set down. Based upon my assessment, the current projection for when this matter may actually be heard is 2022 or 2023 at the earliest, ten or eleven years after the cause of action arose. It may be later.
[22] Counsel for the Appellants acknowledges that the liability and the damages evidence is discrete, with no overlap, and that the liability issues are ready to proceed. Both parties have retained and prepared expert reports on the liability issues.
[23] The Defendant raises concern about the age, health and memory of the retired liability lay witnesses and therefore asked for the bifurcation order.
[24] The Defendant further argues that it will be much easier to resolve this case once the question of liability is determined. The Plaintiffs do not dispute this assertion.
[25] This is an important fact. Once the issue of liability is determined, and if the defendant is held to be liable, the case can be managed to ensure that the infant Plaintiff is receiving all the support and treatment needed to maximize his potential, even if the final assessment of damages is deferred to some later in the distant future.
[26] This is an exceptional case. The high evidentiary threshold to meet the test of a bifurcation order is amply met. I agree with the findings of fact of the Master on this issue. There is no palpable or overriding error in the Master’s assessment of mixed fact and law if he had jurisdiction to make the bifurcation order. The alternative argument of the Plaintiffs is dismissed.
[27] The issue in this appeal then is the narrow question of jurisdiction, and the intended scope of Rule 6.1.01 of the Rules of Civil Procedure.
Does the Master Have Jurisdiction to Bifurcate in Non-Jury Trials Without the Consent of All Parties?
[28] Prior to the enactment of Rule 6.1.01, there is a long line of appellate authority establishing that that only in non-jury cases there is limited inherent jurisdiction to make a bifurcation order if the high threshold of exceptional circumstances in the interests of justice stipulated in Elcano Acceptance Ltd. et al. v. Richmond, Richmond, Stambler & Mills (1986), 1986 CanLII 2591 (ON CA), 55 O.R. (2d) 56 (Ont. C.A.) [“Elcano Acceptance”] is met.
[29] The Court of Appeal in Elcano Acceptance stated at p. 5:
The fact that the power to split a trial is not expressly conferred does not, of course, mean that it may not be part of the inherent jurisdiction of the court and we accept that it exists on this basis, to be exercised in the interest of justice. Resort to it has, in fact, been usefully made. See, e.g., Simpsons Ltd. v. Pigott Construction Co. (1973), 1973 CanLII 626 (ON CA), 1 O.R. (2d) 257, 40 D.L.R. (3d) 47 (Ont. C.A.), and Lake Ont. Cement Co. v. Golden Eagle Oil Co. (1974), 1974 CanLII 742 (ON SC), 3 O.R. (2d) 739, 46 D.L.R. (3d) 659 (Ont. H.C.). It has been held that the power may not be exercised where one of the parties has served a jury notice: Shepley v. Libby McNeil & Libby of Can. Ltd. (1979), 1979 CanLII 1971 (ON SC), 23 O.R. (2d) 354, 9 C.P.C. 201 (Ont. Div. Ct.).
[30] The Court of Appeal further stated that the power to bifurcate “must be regarded as a narrowly circumscribed power,” and “the power should be exercised, in the interest of justice, only in the clearest cases” (see Elcano Acceptance, p. 5).
[31] Since 1989, courts have consistently followed the principles outlined in Elcano Acceptance: bifurcation may be granted under the inherent jurisdiction of the Superior Court in exceptional circumstances.[^2]
[32] In 2010, shortly after Rule 6.1.01 was passed, Blair, J.A. for the Court of Appeal in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126, 100 O.R. (3d) 608 concluded that the new rule did not apply retroactively and hence did not apply to the case before him. Blair J.A. confirmed that the court did not have jurisdiction to bifurcate in a jury trial before Rule 6.1.01 came into effect. He made the following obiter comment about the intended purpose of Rule 6.1.01 at para. 34 which appears to confirm that the intended purpose of the new rule was permissive, to confer limited jurisdiction to bifurcate for jury trials:
This new rule may well permit the bifurcation of issues of fact or of mixed fact and law even when a jury notice has been filed, where the parties consent, thus surmounting the jurisdictional impediments previously in place…
[33] The Divisional Court decision of Bondy-Rafael and the obiter comments in Kovach are the only appellate court decisions considering the interpretation of Rule 6.1.01.[^3]
[34] Bondy-Rafael was an appeal from a decision of the motions judge who had ordered bifurcation of liability issues from damages in a jury trial pursuant to Rule 6.1.01 without the consent of both parties.
[35] There was no inherent jurisdiction prior to the passage of Rule 6.1.01 to make such an order in jury trials. The Divisional Court in Bondy-Rafael concluded that there is no inherent jurisdiction to order bifurcation in jury trials, and that Rule 6.1.01 conferred jurisdiction in jury trials to bifurcate only with the consent of the parties.
[36] The Divisional Court concluded that the motions judge in Bondy-Rafael was without jurisdiction to bifurcate the liability issues in a jury trial without the consent of the parties. Both the majority and the dissenting opinion concurred with the result in that appeal as it was a jury trial. Clearly, based upon the law prior to the passage of Rule 6.1.01, and considering the Rule, there is no inherent jurisdiction and the consent of all parties is a condition precedent to an order for bifurcation in jury trials.
[37] However, the majority decision by Molloy, J. and the dissenting decision of Corbett, J. in Bondy-Rafael embark on a vigorous debate as to the intended meaning of Rule 6.1.01 as it relates to both jury, and non-jury cases. The majority concluded that the new rule 6.1.01 fully occupied the field, therefore abolishing the established inherent jurisdiction with respect to non-jury trials. Corbett, J. concluded that the intended purpose of the new rule was permissive: to allow bifurcation in jury cases with the consent of the parties. He concluded that Rule 6.1.01 was not intended to abolish the Court’s long established inherent jurisdiction to bifurcate in non-jury trials in exceptional cases even without the consent of the parties.
[38] The Master, is bound by the rules of stare decisis to follow the “ratio decidendi” when a higher court has decided the same or substantially the same issue.
[39] The discussion in Bondy-Rafael of the effect of the rule in non-jury cases is obiter as it was not necessary to determine the issues in that case.
Was the Master required to follow the majority obiter analysis in Bondy-Rafael?
[40] The question of jurisdiction may be reduced to one question. Was the Master was required to follow the majority obiter decision in Bondy-Rafael that the inherent jurisdiction to bifurcate in exceptional circumstances for non-jury trials was abolished with the passage of Rule 6.1.01 of the Rules of Civil Procedure?
[41] Both counsel in this appeal presented cogent arguments on the merits, with a detailed emphasis of the facts relevant to the alternative argument, without considering what I consider to this core question.
[42] The Defendant did not argue that the principles of stare decisis do not apply to obiter dicta in Bondy-Rafael. When questioned during argument, counsel for the Plaintiffs submitted that undoubtedly the Master was bound by the principles of stare decisis to follow Bondy-Rafael, including obiter dicta. In argument, without flesh, counsel for the Defendant disagreed.
[43] Further neither counsel considered or made submissions about the impact of the decision of Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331. This Supreme Court of Canada decision confirms that a lower court may not be bound by the decision of a higher court when there is a “fundamental shift in the parameters of the debate” [^4] on a question in issue.
[44] For reasons that I will outline, I conclude that the Master was correct in his conclusion that he had jurisdiction to make the order in question considering the ratio decidendi of Bondy-Rafael. The Master was not bound by the obiter analysis of the application of the case to non-jury decisions.
[45] Alternatively, I find that the Master was correct that he had jurisdiction to bifurcate in this non-jury trial in the interests of justice of this case, applying the principles of Carter.
[46] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, a decision of the Supreme Court of Canada was a fundamental shift in the conduct of civil litigation. Although the decision was rendered before the Bondy-Rafael decision, the impact of the decision as a watershed in the approach to determination of civil cases matured after 2015. Hryniak shifted the parameters of the debate of how to approach civil litigation.
Principles of Stare Decisis
[47] When considering the scope of stare decisis, I return to first principles. Halsbury’s Laws of Canada states.[^5]
“Generally, the term “stare decisis” describes the practice of the courts to consider themselves bound by every prior decision of a higher court within the same territorial jurisdiction. This implies that where the material or essential facts of a case before a court for decision are substantially the same as those of a prior case, the new case will be decided in the same manner as the old” Ratio decidendi and obiter dicta are concepts that assist in determining the scope of stare decisis.[^6]
“The term ratio decidendi describes the process of judicial reasoning that was necessary in order for the court to reach a result on the issues that were presented to it for a decision. All other comments contained within the reasons of the prior court are termed obiter dicta, and in essence such incidental remarks are treated as asides. They may have persuasive value, but they are not binding.”[^7]
[Emphasis added]
[48] The Ontario Court of Appeal in Bedford v. Canada (Attorney General), 2012 ONCA 186, at para. 57 follows these principles. The Court concluded that the ratio decidendi of a case is the judicial reasoning necessary for the court to determine the issues before it. All other comments are obiter. The Court adopted the following statement of principle as confirmed in Halsbury’s Laws of Canada, Civil Procedure 1:[^8]
To employ the traditional terminology: only the ratio decidendi of the prior court decision is binding on a subsequent court. The term ratio decidendi describes the process of judicial reasoning that was necessary in order for the court to reach a result on the issues that were presented to it for a decision. All other comments contained within the reasons of the prior court are termed obiterdicta, and in essence such incidental remarks are treated as asides. They may have persuasive value, but they are not binding.
[49] I note that the principles of stare decisis have evolved.
[50] In R. v. Sellars, 1980 CanLII 166 (SCC), [1980] 1 S.C.R. 527, the Supreme Court of Canada confirmed that the entirety of a majority judgment from the Supreme Court was binding, no matter how incidental to the main point of the case or how far it was removed from the dispositive facts and principles of law. This case may be the high-water mark for stare decisis, applying to Supreme Court of Canada decisions only.
[51] This expansive view of stare decisis outlined in Sellars did not apply to lower court decisions.
[52] In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at para. 57 the Supreme Court clarified and limited the Sellars principle, confirming that some obiter, even in a decision of our highest court is for guidance but is not binding:
All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not ‘binding’ in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.
[Emphasis added]
[53] Following Henry, the Court of Appeal for Ontario, in R. v. Puddicombe,[^9] held that obiter that is integral to the ratio decidendi of a judgment is binding, while obiter that is “incidental or collateral” to the analysis is not binding.
[54] Cases are largely factually dependent. Overly broad obiter dicta statements interpreted as binding may hamper the interests of developing law.
[55] Two decisions rendered after Bondy-Rafael confirm that an overly broad interpretation of the intended scope of Rule 6.1.01 may not be in the interests of justice and is not in accordance with the modern proactive, approach to civil litigation advocated in Hryniak.
[56] In Aprile Estate v. Aprile, 2016 ONSC 7898, Molloy J. (who authored the majority decision in Bondy-Rafael), questioned the applicability of Bondy-Rafael to commercial cases. She states at para. 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-Rafael, 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.
[57] In Campbell v. Campbell, 2017 ONSC 2139, 27 E.T.R. (4th) 118, MacLeod J. in obiter strongly endorsed the view that the intended purpose of Rule 6.1.01 was to modestly enhance jurisdiction in jury cases when the parties consented to bifurcation, not to end the inherent jurisdiction of the Court to make the appropriate remedial order in non-jury cases. He states at paras. 41 and 43:
The respondents sought to rely on the decision of the Divisional Court in Bondy-Rafael v. Potrebicto 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.
…. 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. [Emphasis added]
[58] I confirm that the ratio decidendi of Bondy-Rafael should be read narrowly as applying to the question of the Court’s jurisdiction to bifurcate jury trials. Any of the analysis or comments in the majority decision applying to non-jury trials was not integral to the decision, and is incidental or collateral.
[59] Hence I conclude that the Master was not bound by the obiter analysis in Bondy-Rafael, and that he was correct in concluding that he had jurisdiction without the consent of the parties to make the order to bifurcate this non-jury trial relying on the Court’s inherent jurisdiction in the exceptional circumstances of this case.
Applying the Carter Test
[60] Alternatively, I find that Carter v. Canada (Attorney General) may apply in the facts and circumstances of this case.
[61] In Carter, the Supreme Court of Canad a stated at para. 44:
The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate" (Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101 (S.C.C.), at para. 42).
[Emphasis added]
[62] Carter has been applied in the civil context.[^10]
[63] Master Short does not refer to Carter in his decision. The Master notes however that the majority Divisional Court’s decision in Bondy-Rafael did not consider the Supreme Court’s decision in Hryniak. He concluded in essence that Hyrniak was a fundamental shift in the parameters of how civil litigation is to be conducted. He emphasized the importance of the principles in Hyrniak of proportionate and simplified procedures that ensure a fair and just process and avoid unnecessary expense and delay. He concluded that applying the principles in Hyrniak that bifurcation in this case achieves these objectives.
[64] Alternatively, I conclude that the Master’s order of bifurcation in this non-jury trial is in the interests of justice applying the contemporary guiding principles of Hyrniak.
Conclusions
[65] I conclude that the ratio decidendi in the decision of Bondy-Rafael should be read as applying to jury trials, which was the case before the court. In jury cases there is no established inherent jurisdiction to bifurcate issues.
[66] I conclude that the intended purpose of rule 6.1.01 was to modestly expand the jurisdiction of the Court to allow bifurcation in jury trials in accordance with the new rule, but only with the consent of the parties.
[67] The Master was correct in his conclusion that he had jurisdiction to make the order for bifurcation in this non-jury trial without the consent of the parties, relying upon the court’s inherent jurisdiction in the exceptional circumstances in the case. For the reasons that I have outlined, the facts amply support the order made and the alternative argument is without merit.
[68] Alternatively, if I am wrong in my conclusion that the Master was not bound by the obiter analysis in in Bondy-Rafael, then I conclude relying on Carter, that the principles outlined in Hyrniak trump the decision of the Divisional Court. The Master’s order should be upheld. The parameters of the debate and guiding principles in the conduct of civil litigation dramatically shifted with Hyrniak and should be applied.
[69] Bifurcation in this case is efficient, and will promote settlement. Bifurcation of the liability and damages issues is in the interests of justice for the parties, consistent with the overarching purpose enunciated in Rule 1.04. This Rule provides that the Rules of Civil Procedure are to “be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”
[70] The appeal is therefore dismissed.
[71] Counsel during argument submitted that the case law on the intended scope of Rule 6.1.01 after Bondy-Rafael is inconsistent, and confusing.
[72] I agree.
[73] Whether or not I am correct in my conclusion that the Master had jurisdiction to make the order in the exceptional facts in this non-jury case, or applying the principles of Carter, it appears clear that there is need for clarification by appellate authority, or the Civil Rules Committee on the intended scope of Rule 6.1.01 for non-jury cases.
Costs
[74] At the conclusion of argument I heard submissions from counsel as to costs. They agreed that costs should be awarded to the successful party fixed in the amount of $6,000.00 inclusive of HST and disbursements. Based upon this decision, costs would be awarded to the Defendant. Both counsel acknowledged regardless of outcome, that this matter appears to be headed to a further appeal. They agreed that the costs fixed in this amount should be payable to the successful party once the appeal rights are concluded.
[75] I thank counsel for their helpful submissions. I reiterate my offer to counsel to meet to see if there could be a resolution of some of the substantive issues.
J. Wilson J.
Released: April 4, 2018
CORRECTION NOTICE
Corrected decision: The text of the original judgment was corrected on April 9, 2018 and the description of the correction is appended.
In the style of proceeding counsel for the plaintiffs has been corrected as Thomas J. Hanrahan and the name of counsel for the Defendant, David Grant Boghosian, has been removed.
2018 ONSC 1811
COURT FILE NO: CV-12-449431
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
GAVIN DUGGAN Minor by his Litigation Guardian PHILLIP KNIGHT, and JESSICA KNIGHT and PHILLIP KNIGHT
Plaintiffs, Appellants
– and –
DURHAM REGION NON-PROFIT HOUSING CORPORATION
Defendant, Respondent
REASONS FOR JUDGMENT
J. Wilson J.
Released: April 4, 2018
[^1]: Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007), at Pre-Trials and Management.
[^2]: See McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario (Inc.) (1995), 37 C.P.C. (3d) 147 (Ont. Gen. Div.), at p. 8; General Refractories Co. of Canada Ltd. v. Venturedyne Ltd. (2001), 6 C.P.C. (5th) 329, at para. 10, Morden J.A.; Waxman v. Waxman (1999), 34 C.P.C. (4th) 120 at 129 (Ont. Gen. Div.); Soulliere (Litigation guardian of) v. Robitaille Estate, 2013 ONSC 5073, at para. 32; Glasjam v. Freedman, 2014 ONSC 3878, at para. 77; O’Brien v. Universal Workers Union (Labourers’ International Union of North America, Local 183), 2015 ONSC 7005, at para. 28).
[^3]: The Court of Appeal recently considered Bondy-Rafael in Mars Canada Inc. v. Bemco Cash Carry Inc., 2018 ONCA 239, at paras. 30-35, however in that case the Court was considering the bifurcation of a motion for summary judgment. The Court of Appeal’s decision in Mars Canada does not deal with the issues in this appeal.
[^4]: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44.
[^5]: Halsbury’s Laws of Canada, First Edition, Civil Procedure (2017 Reissue) (Toronto: LexisNexis, 2017) at p. 285.
[^6]: Halsbury’s Laws of Canada, First Edition, Civil Procedure (2017 Reissue) (Toronto: LexisNexis, 2017) at p. 285.
[^7]: Halsbury’s Laws of Canada, First Edition, Civil Procedure (2017 Reissue) (Toronto: LexisNexis, 2017) at p. 289.
[^8]: Halsbury’s Laws of Canada, Civil Procedure I, 1st ed. (Markham: LexisNexis Canada, 2008), at p. 282.
[^9]: R. v. Puddicombe, 2013 ONCA 506, 299 C.C.C. (3d) 534, at para. 68.
[^10]: The Court of Appeal has considered the Carter approach to stare decisis in the following civil cases: Black v. Owen, 2017 ONCA 397, and Robson v. Law Society of Upper Canada, 2017 ONCA 468. The Divisional Court has considered this issue in Ontario Federation of Anglers and Hunters v. Ontario (Minister of Natural Resources and Forestry), 2016 ONSC 2806 (Div. Ct.), and Amormino v. Ontario (Police Services Board), 2015 ONSC 7718 (Div. Ct.).