BARRIE COURT FILE NO.: CV-20-719-00 DATE: 20240718 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Hudson LaPointe, Wendy LaPointe and Randy LaPointe Plaintiffs/Respondents – and – Simcoe Muskoka Catholic District School Board Defendant/Moving Party

Counsel: Troy Lehman, for the Plaintiffs Renata Antoniuk, for the Defendant

HEARD: July 2, 2024

REASONS FOR DECISION

HEALEY, J.:

Nature of the Motion

[1] The defendant, Simcoe Muskoka Catholic District School Board, brings this motion for an order granting separate hearings on issues of liability and damages, with the issue of liability to be tried first.

[2] The motion is brought pursuant to the new Rule 6.1.01(1) of the Ontario Rules of Civil Procedure, which came into effect on July 1, 2024 (the “new Rule”).

[3] The motion was heard the day after the new Rule came into effect. On July 8, 2024, I released a brief endorsement ruling that the motion was dismissed, with reasons to follow.

The Action

[4] This is a personal injury action brought by Hudson LaPointe and his parents due to injuries that he is alleged to have suffered while playing in a school-sanctioned three pitch softball tournament. Both liability and damages are in dispute.

[5] Hudson was playing in the position of pitcher during the interschool tournament when one of his teammates hit a line-drive directly back into Hudson’s face. Hudson was not wearing protective facial equipment. The injuries alleged are facial fractures, scarring, nasal injuries, and a traumatic brain injury.

[6] The crux of the liability dispute is whether the defendant failed to recognize the risks and dangers that an unprotected pitcher was exposed to at the softball tournament, and whether the standard of care required the defendant to provide him with the necessary face mask and training, and to have mandated that the mask be worn while pitching.

[7] The Statement of Claim seeks over $5 million in damages. Causation is in issue due to subsequent incidents involving Hudson.

[8] The matter was scheduled for trial for fifteen days before a jury following a pretrial conference in the fall of 2023. It is now on the trial list for the Central East Region “Civil Trial Blitz” which is scheduled to start on September 9, 2024, and run for five weeks. At the time of writing these reasons, there are 40 cases on the trial list for that sitting. Any trials not reached will be adjourned to the next civil trial sittings in Central East Region scheduled for January, 2025.

[9] The parties agree that if the trial is bifurcated, the liability portion will take five days of trial time. The plaintiffs have served two reports from two proposed liability experts and the defendant has served one.

[10] The plaintiffs have served reports from nine proposed damage experts.

[11] The defendant’s position is that this is an ideal case for bifurcation under the new Rule, as the factors set out in the new Rule 6.1.01(2) weigh in favour of separating the issues of liability and damages. Ms. Antoniuk, counsel for the defendant, argued that this is a case where liability, damages and the witnesses who are needed to testify to those issues, are separate. Besides the plaintiffs, no other witnesses are expected to give evidence at both the liability and damages hearings. The plaintiffs’ voluminous medical records will not be required at a trial on liability. Because of the potential for liability to be decided against the plaintiffs, substantial savings in preparation, trial time and associated cost could be avoided.

[12] The plaintiffs’ position is that these issues are not discrete, and so this is not a case in which the application of the new Rule would favour bifurcation. Trial preparation is underway in Mr. Lehman’s office (counsel for the plaintiffs), including witness preparation, and the proposed weekly witness schedule indicates that the entire trial can be completed within fifteen days. Damage reports have been updated in anticipation of a September trial date. Further, there is an overlap between some of the liability and damage witnesses. Some of Hudson’s teammates, who were present at the time of the incident, will be testifying. It is anticipated that they will offer testimony about their observations of Hudson’s loss of consciousness and confusion, which Mr. Lehman submits is important in a brain injury trial. He argued that their observations about how the incident occurred will also be important to liability.

[13] Further, Mr. Lehman submitted that the plaintiffs’ biomechanical expert, Dr. Benjamin Elkin, will speak primarily to liability, but also damages. His anticipated evidence will help inform the jury about two points: first, how Hudson’s injuries were caused, and second, how facial protection would have prevented or mitigated against those injuries. He argued that the level of danger involved in playing without a face mask is exemplified by the injuries sustained by Hudson, which helps to inform the standard of care reasonably required in the circumstances. Splitting the issues will result in Dr. Elkin having to testify at both trials.

Issue

[14] The motion raises a single issue: whether the court should exercise its discretion to bifurcate the issues of liability and damages and order separate trials for each issue pursuant to the new Rule.

The New Rule 6.1.01 (O. Reg. 175/24, s. 1)

[15] The new Rule 6.1.01 provides as follows:

6.1.01 (1) 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,

(a) on a party’s motion, with or without the consent of the other parties; or

(b) at a conference under Rule 50, with the consent of the parties.

(2) In determining whether to order a separate hearing, the court shall consider,

(a) whether ordering a separate hearing will dispose of some or all of the issues, shorten or simplify the rest of the proceeding or result in a substantial saving of costs;

(b) whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact;

(c) whether ordering a separate hearing would unduly prejudice or advantage a party, including the impact on any counterclaim, crossclaim or third or subsequent party claim or, in cases where a jury notice has been delivered, on a party’s election to have the action heard by a jury;

(d) the impact of ordering a separate hearing at the applicable stage in the proceeding; and

(e) any other relevant matter. O. Reg. 175/24, s. 1.

[16] By comparison, the former Rule provided:

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.

[17] The former Rule 6.1.01 came into effect on January 1, 2010. Its enactment marked the first time that the Rules of Civil Procedure contained an express provision giving courts the statutory power to bifurcate trials.

[18] The former Rule 6.1.01 was enacted after the “Civil Justice Reform Project” and its Summary of Findings and Recommendations had been completed by the Honourable Coulter Osborne, Q.C. He recommended that the Civil Rules Committee consider creating a rule that would permit an order for bifurcation to be made on motion or on the court’s own initiative after hearing from the parties. He suggested that such rule could reference some or all of the factors that had been listed by the Ontario Court of Justice, General Division in Bourne v. Saunby (1993), 38 O.R. (3d) 555 (Ont. Gen. Div.) (“Bourne”). [1]

[19] In Bourne, Tobias J. outlined fourteen queries that could assist the court when considering bifurcation motions [2]:

1. Are the issues to be tried simple?
2. Are the issues of liability clearly separate from the issues of damages?
3. 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?
4. Does the issue of causation touch equally upon the issues of liability and damages?
5. Will the trial judge be better able to deal with the issues of the injuries of the plaintiff Hudson and his financial losses by reason of having first assessed his credibility during the trial of the issue of damages?
6. 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?
7. Are the issues of liability and damage is so inextricably bound together that they ought not to be severed?
8. 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?
9. Is there a clear advantage to all parties to have liability tried first?
10. Will there be a substantial saving of costs?
11. Is it certain that the splitting of the case will save time, or will it lead to unnecessary delay?
12. Has there been an agreement by the parties to the action on the quantum of damages?
13. 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?
14. Is it likely that the trial on liability will put an end to the action?

[20] Ultimately, none of the factors listed in Bourne were incorporated into the former Rule 6.1.01. Some of them were replicated, although not verbatim, in the new Rule under subsection 6.1.01(2). A careful reading of the new subsection suggests that while some or all these factors may still be appropriately considered under subrule (e) “any other relevant matter”, caution should be exercised to ensure that any factor articulated in Bourne is not inconsistent with the specific language contained in the new Rule.

[21] Unlike the former Rule 6.1.01, the consent of both parties is not required to grant an order for separate hearings. Consent was a strict precondition to the making of such an order under the now-revoked Rule: see Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, 153 O.R. (3d) 465 (“Duggan”). [3]

[22] In deciding whether to exercise such discretion, the court is required to consider each of the factors set out in subrule (2)(a) to (e) of the new Rule.

[23] As was the case with the former Rule, the new Rule applies to a “proceeding”, which is defined in Rule 1.03(1) to mean an action or application.

The Court’s Inherent Power to Bifurcate Trials

[24] Before the enactment of former Rule 6.1.01 in 2010, it was recognized that courts had the inherent power to bifurcate the issues in a non-jury trial and render a judgment on one issue in an action, in certain circumstances.

[25] In Elcano Acceptance Ltd. Et al. v. Richmond, Richmond, Stambler & Mills (1986), 55 O.R. (2d) 56 (ONCA) (“Elcano”), Morden J.A. held that the power to split trials was part of the court’s inherent jurisdiction and was to be exercised in the interests of justice, and only in the clearest of cases. He cautioned that it should be regarded as a “narrowly circumscribed power” because “it is a basic right of a litigant to have all issues in dispute resolved in one trial” [4]. Morden J.A. also held that this approach was supported by s. 148 (now s.138) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), which cautions restraint against a multiplicity of proceedings. [5]

[26] The court in Elcano also noted that it had been decided that the power may not be exercised where a jury notice has been served, citing Shepley v. Libby, McNeil & Libby of Canada Ltd. (1979), 23 O.R. (2d) 354 (Div. Ct.).

[27] The Ontario Court of Appeal confirmed that approach in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126 (“Kovach”), finding that the court lacked jurisdiction to bifurcate issues where a valid jury notice was in place. This ruling was restricted to the period before the express statutory power conferred by the former Rule 6.1.01 came into force on January 1, 2010.

[28] At paragraphs 24 and 25 of Kovach, Blair J.A. referenced the “well-entrenched principle in Ontario”, embodied in subsection 108(1) of the CJA, that a litigant has the inherent right to have issues of fact or of mixed fact and law decided by a jury.

[29] Subsection 108(1) states, as it did at the time that Kovach was decided:

In an action in the Superior Court of Justice that is not in the Small Claims Court, a party may require that the issues of fact be tried, or the damage is assessed, or both, by a jury, unless otherwise provided.

[30] Blair J.A. interpreted the language of s. 108(1) to mean that a party could require that the issues be tried by a single jury. He stated:

Had the legislature intended such a marked departure from the normal and long- standing practice of trials by “a” judge or “a” jury, it would have said so by using the words “trial by any jury” or, simply, “trial by jury”. It did not do so. [6]

[31] He noted that interpreting s. 108(1) of the CJA in a way that would permit different juries to decide different issues would be contrary to the well-entrenched principle that a trier of fact must remain seized of an action until judgment is pronounced. He also reasoned that because jurors are judges of the facts in a case, the same principle applies to a jury. Also, while s. 108(3) of the CJA confers the specific power for issues to be removed from the jury and tried by judge alone, no such legislative authority exists for the splitting of issues to be tried by two or more juries. [7]

[32] Blair J.A. discussed some of the problems that might arise if jury trials were bifurcated, with separate juries selected to try different issues. [8] These could include: multiple appeals in the same action, associated with delays and substantial costs; inconsistent findings between juries; two triers being seized of the same action; and the limited ability of the motions judge to accurately predict whether there will be no overlap in the evidence relating to both liability and damages at trial. He stated that these considerations underscored the rationale behind his interpretation of s. 108(1). [9]

[33] Finally, he stated that a major change in the law that would allow bifurcation of jury trials was better left to the legislature or the Civil Rules Committee, “a responsibility that the Rules Committee has now fulfilled” [by enacting the former Rule 6.1.01]. [10]

[34] The Civil Rules Committee has done that again in presenting us with the new Rule 6.1.01. Significantly, the new Rule was not accompanied by a legislative change to either subsection 108(1) or section 138 of the CJA.

Analysis

[35] Ms. Antoniuk submitted that an analysis of the application of the new Rule to this case must begin with regard to the directive found in Rule 1.04(1), which states: “These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. I note that the factors that are listed in subsection (2) of the new Rule appear to have been designed to meet these same objectives.

[36] As Ms. Antoniuk ably argued, the new Rule provides a practical tool for achieving the goals set out in Rule 1.04(1). Such cost-savings were recognized in the Summary of Findings & Recommendations produced by the Honourable Coulter Osborne.

[37] His recommendations did acknowledge that cost savings could be a benefit in some cases, but his comments were more fulsome: [11]

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. There is no doubt that bifurcation can delay the final resolution of the entire proceeding and, where issues overlap, evidence and testimony may need to be repeated. Where these concerns apply, a bifurcation order should not be made.

[38] He further stated: [12]

The Civil Rules Committee should consider prescribing, at least in general terms, when it is open to courts to make a bifurcation order. In the end, the court’s discretion in making bifurcation orders should be expanded while recognizing that bifurcation remains the exception, not the rule.

[39] Guidance on how to interpret the new Rule may be found in Duggan, in which the Court of Appeal applied the principles of statutory interpretation to decide the issue of whether the former Rule limited the court’s ability to bifurcate a trial only on consent in both jury and non-jury trials, or whether the court retained its inherent jurisdiction to bifurcate a non-jury trial despite objection. The Court held:

The purpose and effect of the word “may” in the context of the wording of the rule is to give the court the discretion to make an order, but not require it to do so, even where the parties consent. That discretion allows the court to implement the philosophy of s. 138 of the CJA, which provides that “As far as possible, multiplicity of legal proceeding shall be avoided.” It also accords with the cautionary approach to the previous inherent jurisdiction to make such orders referred to by Morden J.A. in Elcano at p. 5, as follows: “… since it is a basic right of a litigant to have all issues in dispute resolved in one trial it [the inherent jurisdiction of the court] must be regarded as a narrowly circumscribed power.” [13]

[40] The use of the word “may” in subrule (1) confirms that a decision to order separate hearings remains in the court’s discretion, even with the consent of the parties.

[41] The factors set out in 6.1.01(2) will be examined in sequence.

6.1.01(2)(a) Whether ordering a separate hearing will dispose of some or all of the issues, shorten or simplify the rest of the proceeding or result in a substantial savings of costs.

[42] Mr. Lehman stressed the use of the word “will” in subsection 2(a). He submitted that the decision of the drafters to not use “may” or “could” requires that the court first find that it will be a virtual certainty that some or all of the issues will be disposed of, or the proceeding shortened or simplified, or result in substantial cost savings, before making a bifurcation order.

[43] He pointed to the opposing party’s factum and its employment of the term “could”. The defendant used this term in its submission that a five-day liability trial “could” dispose of all the issues and save the parties and the court time, money, and resources.

[44] I agree that the use of the word “will” dictates that the moving party is required to present evidence decisively showing a positive benefit, whether that be disposing of some or all the issues, shortening or simplifying the rest of the proceeding or resulting in a substantial savings of costs.

[45] It will always be the case that a separate trial on liability could end the case and shorten trial time if a trial on the other issues is rendered unnecessary. But separation does not automatically translate into shortening the proceeding overall or result in cost savings.

[46] Because a jury notice has been served, the same potential complications identified by the Court of Appeal in Kovach work against a determination that splitting the trial would save time and money. These include, among others, multiple appeals in the same action, associated with the delays and substantial costs.

[47] If there is no appeal, there will be substantial cost savings. If there is a successful appeal by either party, there could be a second trial on liability, but perhaps only after the damage trial has been completed and the appeal(s) heard.

[48] An example of a case which demonstrates the procedural complications (with accompanying delay and expense) that can arise when issues are determined separately, and an appeal is triggered, is SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 601. This was a case that did not involve a jury. The appellants sought to expedite the liability appeal, claiming that it was in the interests of justice that it be heard and decided before the damages trial. The respondent disagreed, submitting that the liability appeal should not be scheduled until the damages trial has taken place. After reviewing the law and noting the provision of s. 138 of the CJA, and the holding in Elcano that the power to split a trial is a “narrowly circumscribed power”, Thorburn J.A. stated, at paragraph 38:

As noted in the cases cited above, the ordinary practice is to pursue a single appeal from decisions on liability and damages. The moving party must establish that it is in the interests of justice to do otherwise. Fragmenting appeals, particularly in large and complex cases such as this, may well delay the overall administration of justice at both the trial and appeal court level by having appeals of different aspects of the case heard at different times.

[49] The defendant has also not provided evidence that the trial time will be shortened if it is unsuccessful on liability. Liability is expected to take five days of trial and damages ten days, regardless of whether tried together or separately.

[50] Although the defendant has argued that it is more likely that a five-day trial will be called in for a hearing during the September Civil Blitz, rather than a fifteen-day trial, there is no evidence to support this contention. The matters on the list will be scheduled to be heard as dictated by their age in the system and, crucially, the availability of courtrooms, the assigned judges, of which there are six, and the jurors. Trial length is only one variable and there is no direction in the Notice to the Profession that shorter trials will be given priority during this Civil Blitz.

[51] The defendant submits that the issues are simplified because a jury will only be required to assess one issue or the other, instead of having to assess both issues at once. This is not actually a simplification or shortening of the issues, but rather just dividing them up into individual time slots.

[52] There is also no evidence that a liability decision in favour of the plaintiffs would increase the chances of settling damages in this case. The evidence on this motion suggests that causation will still be a live issue.

[53] I conclude that the defendant has not shown that a separate hearing will dispose of some or all the issues, shorten or simplify the rest of the proceeding or result in a substantial savings of costs.

6.1.01(2)(b) Whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact.

[54] Mr. Lehman emphasised the presence of the word “clearly” in this subrule. I agree that the drafters’ general intent in using the word “clearly” was that issues should not be separated unless they can truly be compartmentalized. This will not likely be possible where there will be an overlap in witnesses or evidence on the various issues, or where causation touches on both liability and damages, or where the issues of liability and damage are so inextricably bound together that they should not be severed.

[55] Sometimes there will be ambiguity at the motion stage around whether these factors are a real concern, or whether they are being exaggerated by the party resisting the motion. Without a full appreciation for the case, it may be quite difficult for the motion judge to feel satisfied that the issues are clearly severable, or that there is no risk of inconsistent findings between juries. For example, the Court in Kovach noted that it may be almost impossible for a motion judge to accurately determine whether there will be no overlap on the evidence relating to both liability and damages, which was seen as a reason to avoid splitting the issues. [14] In this case, however, there is some basis for concluding that the issues of liability and damages will necessarily involve some blending of evidence.

[56] Based on the defendant’s expert report, the evidence of its liability expert is anticipated to be that the standard of care regarding safety and equipment for running an elementary interschool softball tournament, expected of a school board at that time, did not require the defendant to mandate that pitchers wear a mask. The plaintiffs obviously have a different view on the applicable standard of care.

[57] Standard of care is not assessed in a vacuum. It requires an appreciation of the facts of the case, including the risks of harm presented by a situation. In Ryan v. Victoria (City), [1999] 1 S.C.R. 201 (S.C.C.) (“Ryan”), Major J. described the factors to be considered in any formulation of the standard of care:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. [15]

[58] Thus, the standard of reasonable care is informed by factors such as the likelihood of foreseeable harm, the seriousness of that harm, and the reasonableness of measures that could have been taken to avoid that harm.

[59] The harm that was caused to Hudson, demonstrated through the evidence starting immediately after he was hit in the face with the ball throughout the subsequent course of his injuries, are all relevant to an inquiry into the standard of care and whether it was breached. It is a reasonable likelihood that Dr. Elkin’s biomechanical evidence is needed for both issues, and that the evidence of lay witnesses will be relevant to both damages and liability.

[60] There is also the issue of causation at play in this case. There is evidence to suggest that Hudson may have suffered brain trauma during later incidents unrelated to the softball game. The plaintiffs anticipate that the defendant may argue that his subsequent brain injuries are causing or contributing to his current presentation. Accordingly, the same jurors should hear the evidence surrounding the incident, as well as any evidence about subsequent incidents alleged to be now affecting him, to be able to properly assess the evidence and the parties’ positions.

[61] I conclude that this factor does not weigh in favour of separate trials.

6.1.01(2)(c) Whether ordering a separate hearing would unduly prejudice or advantage a party, including the impact on any counterclaim, cross claim or third or subsequent party claim or, in cases where a jury notice has been delivered, on a party’s election to have the action heard by a jury.

[62] Mr. Lehman urged the court to examine this motion through the parameters that were set in place by Elcano, that is, that the power to bifurcate is narrowly circumscribed and must be exercised in the interests of justice and only in the clearest of cases. If the new Rule is intended to replace the court’s inherent jurisdiction, the common law test is no longer the one to be applied, as the wording of the new Rule would take precedence and provide the framework within which a request for bifurcation may be considered, with or without the consent of both parties. Whether that was the intention remains in doubt, in my view.

[63] On its face, the new Rule applies to all proceedings and does not differentiate between an action to be tried by judge alone or by a judge and jury. Subrule 2(c) requires that regard must be had, however, to the effect of bifurcation where a jury notice has been served.

[64] The wording of the new Rule appears to contemplate the ordering of separate trials in cases for which a jury notice has been served. There is no express prohibition against doing so. The court must consider the prejudice or advantage to a party caused by ordering a separate hearing in cases to be tried by a jury. “Some” prejudice or advantage is not enough. Rather, the consideration is the extent to which the parties would be affected by such an order, and whether it would “unduly” cause prejudice or advantage.

[65] The new Rule is difficult to reconcile with the body of common law decided before the former Rule was enacted, under the court’s inherent jurisdiction, holding that jury trials are excluded from bifurcation where there was no consent because the court lacks jurisdiction to do so. Specifically, despite its expansive application to “all proceedings”, it appears to conflict with s. 108(1) of the CJA and the interpretation given to it by the Court of Appeal in Kovach. As no amendment has been made to s. 108(1), a possible interpretation is that Kovach remains good law, such that delivery of a jury notice still gives rise to the statutory right to have the entire case heard by one jury and the court lacks jurisdiction to order otherwise. As stated by Feldman J.A. in Duggan, “a litigant’s right to a jury is entrenched in the CJA”. [16] Feldman J.A. also noted that nothing in the CJA suggests that a party cannot waive this right, which remains the case. [17]

[66] The concluding words of subsection 2(c) are informative: “by a jury”. The subsection tracks the language of s. 108(1) of the CJA by referencing “a” jury, instead of “any” jury or even “juries”. Integral to the Court’s analysis in Kovach was the conclusion that the use of “a jury” in s. 108(1) means that there is no jurisdiction – absent consent – to order issues of fact or mixed fact and law to be decided by more than one jury.

[67] As subordinate legislation, it would normally be the case that where a provision of the Rules of Civil Procedure conflict with its parent statute, namely the CJA, the statute will prevail. As explained by Ruth Sullivan in The Construction of Statutes, 7th ed. (Markham, Ont.: LexisNexis Canada Inc., 2022) at section 11.05, para. 5:

The presumption of coherence applies to regulations and by-laws as well as statutes. It is presumed that subordinate legislative provisions are meant to work together, not only with their own enabling legislation but with other Acts and other subordinate legislation. However, if conflict is unavoidable, in the absence of evidence of a contrary legislative intent, the statutory provision prevails.

[68] Subsections 66(1) and (2) of the CJA empower the Civil Rules Committee to make rules “even if they alter or conform to the substantive law”. In enacting the new Rule, the Committee may have intended to alter the common law that has, before now, prohibited the splitting of issues where a jury notice has been served, absent consent. However, enacting a rule that conflicts with s. 108(1) is prohibited, as s. 66(3) of the CJA provides:

Nothing in subsection (1) or (2) authorizes the making of rules that conflict with an Act, but rules may be made under subsection (1) supplementing the provisions of an Act in respect of practice and procedure.

[69] There is nothing in the wording of the new Rule to support the conclusion that it was an attempt by the Civil Rules Committee to “supplement” s. 108(1) of the CJA.

[70] Another possible interpretation is that the new Rule does not conflict with s.108(1), as the reference to election of trial by jury in subrule 2(c) is meant to signal that the holding in Kovach remains available to guide the court. Again, bifurcating a jury trial without the opposing party’s consent would introduce an entirely new scheme that runs contrary to the long-entrenched principle that a litigant has the right to elect to have their case heard by a single trier of fact from start to finish.

[71] Whether the new Rule was intended to be comprehensive legislative code that would oust the inherent jurisdiction of the court remains unclear. To do so, it would have to contain clear and precise wording, as was found to the be the case for the former Rule. [18] The purpose of the legislation seems to be to allow courts to bifurcate cases even where there is no consent, but its wording is not clear enough to identify this as an attempt, where jury trials are concerned, to reform the common law. Regard must be had to R. v. Rose, [1998] 3 S.C.R. 262 (“Rose”) [19], in which L’Heureux-Dube J. approved the following passage from I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs 23, at p. 24:

Moreover, the term “inherent jurisdiction of the court” is not used in contradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. [Emphasis added]

[72] In summary, it remains unclear whether the inherent jurisdiction of the court, which has historically eschewed severing issues in jury cases because of lack of jurisdiction, may still be exercised, or whether to do so would run afoul of the purpose and intention of the new Rule.

[73] I leave it to a higher court to provide clarity on these issues. For the purposes of this motion, I find that the delivery of a jury notice militates against splitting the issues. The prejudice inherent in bifurcating issues in jury trials that is referenced in Kovach and cases cited therein has not been eliminated or ameliorated in any way by the new Rule. They apply in this case to unduly prejudice the plaintiffs.

[74] A jury cannot be held over from one trial sittings to another to hear the damages trial. If the damages trial is not reached in January 2025, the next opportunity will be September 2025. Even if jurors were willing – a highly unlikely event – the variety of life events that can arise in the space of a year precludes any likelihood that the same six jurors would be able to hear the second trial. It is simply not feasible to have the two issues tried by the same jury.

[75] Having a different jury decide the two issues where there is some overlap in witnesses and evidence, as is the case here, gives rise to the possibility of inconsistent findings. In a brain injury case, where self-reporting of symptoms and thus the credibility of the main plaintiff Hudson is central to the case, the plaintiffs are denied the opportunity for the same jury to make its assessment on the whole of the evidence.

[76] There is also the cost of preparing twice for two trials, particularly where witness preparation will have to occur twice. As already mentioned, the causation dispute in this trial will mean that the same ground will have to be covered.

[77] And as discussed, there is the potential for an appeal of the liability finding with its associated cost and delay in the damages trial.

6.1.01(2)(d) The impact of ordering a separate hearing at the applicable stage in the proceeding

[78] Although this motion was filed in anticipation of the Rule change and returnable at the first possible date, the proximity to the scheduled trial is problematic. The defendant has not countered the plaintiffs’ evidence that trial preparation has begun in earnest, and that there is a genuine possibility that the plaintiffs will have to re-invest time, resources and disbursements to prepare again for a damage trial that would be, at the earliest, five and half months from now.

6.1.01(2)(e) Any other relevant matter

[79] This incident occurred in May 2018, already over six years ago, so the additional delay that would be caused by splitting the issues must also give rise to consideration of the effect of the passage of time on witnesses’ memories of the events, a situation that can disadvantage either party and does not aid the primary truth-seeking function of the trial.

Conclusion

[80] The application of the new Rule to the facts of this case leads to the conclusion that this is not a case in which it is in the interests of justice to order separate hearings on the issues of liability and damages.

[81] For these reasons, the motion was dismissed with costs to the plaintiffs fixed in the amount of $5,000, in accordance with the parties’ agreement.

Madam Justice S.E. Healey Released: July 18, 2024