COURT FILE NO.: CV-17-5094 DATE: 20241202 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ronald W. Wheelans and Sandra E. Wheelans, Plaintiffs AND: Emily Helen Kuss, Jean-Marc E. Kuss, Adla Begeta, Amir Begeta, Blandine Karire, and Jean Claude Karire, Defendants

BEFORE: The Honourable Justice Ranjan K. Agarwal

COUNSEL: Jeffrey Wm. Strype, for the plaintiffs (responding parties) Lauren Bloom, for the defendants (moving parties) Blandine Karire and Jean Claude Mureke Joe Bowcock, for the defendants (moving parties) Emily Helen Kuss and Jean-Marc E. Kuss Neil Colville Reeves, for the defendants (moving parties) Adla Begeta and Amir Begeta [1]

HEARD: November 29, 2024

AMENDED ENDORSEMENT

I. Introduction

[1] Over 10 years ago, the Supreme Court of Canada recognized that a “culture shift” was required to promote “timely and affordable access to the civil justice system.” See Hryniak v Mauldin, 2014 SCC 7, at para 2. In 2021, the Court of Appeal for Ontario described our civil justice system as facing “an unprecedented crisis”, and courts as “overwhelmed” by the management of the system. See Louis v Poitras, 2021 ONCA 49, at para 1.

[2] One of the tools that can deliver time civil justice is separate hearings on issues in a proceeding. In motor vehicle and other personal injury cases, the bifurcation of the issues of liability and damages may lead to a more just, expeditious, and less expensive determination of the case on its merits.

[3] For many years, the statutory right to a jury trial hampered the parties’ and the court’s ability to use this tool. The Rules of Civil Procedure and the common law constrained the court’s jurisdiction to order bifurcation in a jury trial unless all the parties agreed. In July 2024, perhaps in response to both this law and in furtherance of the mandate for a culture shift, Ontario amended Rule 6.1 to allow the court to order bifurcation in a jury trial over a party’s objection.

[4] The plaintiff Ronald Wheelans was seriously injured in a multi-car accident in 2016. For over 9 years, this case has been plodding along to trial. In January 2025, the parties are on the trial list for a five-week jury trial on both liability and damages. In late November, the defendants moved urgently for an order for separate hearings on the issues of liability and damages. If granted, the liability hearing will be less than a week.

[5] Ronald and his spouse, the plaintiff Sandra Wheelans, oppose this motion. They say that there’s been too much delay already. If they succeed on proving the defendants’ liability, the hearing on damages likely won’t be heard until January 2027.

[6] The issue on this motion is whether it’s just to order a separate hearing on liability. For the reasons discussed below, I don’t believe so. Even though rule 6.1 can be used to help deliver timely justice, it can also be misused to create further delay. If Ronald and Sandra prove the defendants’ liability, they may have to wait two more years to finish the trial. That’s too long. In October, the defendants said they were ready for the damages trial in January 2025. They’ll have to be.

[7] As a result, the defendants’ motion is dismissed. In accordance with the parties’ agreement, the defendants shall pay Ronald and Sandra’s costs fixed in the amount of $8000.

II. Background

A. Facts

[8] Ronald was seriously injured in a car crash in July 2016. He alleges that he was hit by the defendant Adla Begeta’s car while he was maneuvering to avoid crashing into the defendant Emily Kuss’s car. She had changed lanes in front of Ronald to avoid the defendant Jean Claude Mureke’s broken-down car in her lane.

[9] Ronald sued the other drivers and owners in November 2017. Pleadings closed in October 2018. Most of the defendants delivered a jury notice.

[10] Ronald was injured in another car accident in November 2018. He sued for those injuries in 2020 (CV-20-723). In May 2022, the court ordered that the actions be heard at the same time or one immediately after the other.

[11] The actions were placed on the trial list for the January 2025 sittings.

[12] In August 2024, Adla and the defendant Amir Begeta asked the parties to consent to separate hearings on the issues of liability and damages. Ronald and Sandra refused because of “inordinate delay”.

[13] The pre-trial conferences were on October 8, 2024. The pre-trial conference judge asked the parties to file the pre-trial conference report by October 25th. [2] The estimated duration of the trial is 25 days.

[14] One of the issues at the pre-trial conference was scheduling Mureke and the defendant Blandine Karire’s motion for an order that Ronald undergo a physical examination so they could serve a supplementary expert’s report. They are now not moving for this order, and have since served the report.

[15] The companion action then settled on October 29th.

[16] The pre-trial conference report filed by the parties states that they expected a “Bifurcation motion”. There’s nothing in the pre-trial conference judge’s endorsement that shows this issue was discussed at the conference. The defendants’ evidence is that it was “briefly discussed”; Ronald and Sandra say it has “never been mentioned before” this motion.

[17] In mid-November, the defendants requested an urgent hearing of this motion for an order for separate hearings. Regional Senior Justice Tzimas designated me to hear it.

[18] The parties agree that the trial of the liability issues will be three to four days (990 minutes).

B. Legal Framework

[19] The court used to have the inherent jurisdiction to bifurcate a non-jury trial. But the practice in Ontario precluded bifurcation where a jury notice had been served, absent consent. The court’s inherent jurisdiction can’t be exercised to undermine a litigant’s statutory right to a jury trial. See Duggan v Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, at paras 23-28.

[20] In 2010, rule 6.1.01 was enacted: “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.” This addition to the rules confirmed the court’s power in jury cases but constrained the court’s inherent jurisdiction in non-jury cases. See Duggan, at para 31. In short, starting in 2010, the court couldn’t order bifurcation in either a jury trial or a non-jury trial without the parties’ consent.

[21] Rule 6.1.01 was amended in July 2024. Now, the court may order a separate hearing with or without the consent of the other parties. There’s nothing in the words of the rule that suggests that it’s limited to non-jury trials (i.e., that the court can, once again, order bifurcation in a non-jury trial over a party’s objection but still can’t do so in a jury trial). See also Duggan, at para 21.

[22] I don’t know the express purpose of the rule. But the timing of the amendment, which follows the courts’ recognition of a crisis in the civil justice system and an increased backlog of cases following the COVID-19 pandemic, suggests that two of its objects are to shorten trials and encourage settlements.

[23] The rules must be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. See Rules of Civil Procedure, r 1.04(1). That said, as far as possible, multiplicity of legal proceedings must be avoided. See Courts of Justice Act, RSO 1990, c C.43, s 138.

[24] 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.

See Rules of Civil Procedure, r 6.1.01(2).

[25] There’s only one published case applying the amended rule. See LaPointe v Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040. As I discuss below, many of the arguments made by the defendants here were rejected by Justice Susan Healey in that case, leading her to deny the defendant’s motion.

[26] The defendants briefed whether leave is required after the action is set down for trial. Rule 48.04(3)(b) states that no such leave is required and, in any event, the defendants didn’t set the action down for trial.

III. Analysis and Disposition

[27] The defendants argue that separating the hearings will result in a much shorter trial, which will save time, money, and judicial resources. Ronald and Sandra respond that bifurcation will, in fact, increase their costs and delay final resolution of this matter.

A. Will separate hearings shorten the proceeding or save costs?

[28] This trial is scheduled for 25 days, before a jury. [3] The parties agree that if the liability issue is litigated first, the trial will be three to four days long. On its face, separate hearings will shorten the proceedings. The parties will save some costs if only because their preparation, at least from this date forward, and their work during the trial will focus on liability only. The defendants also submit that there are several pre-trial motions on the damages issue that won’t need to be litigated right away.

[29] But separate hearings aren’t guaranteed to shorten the proceeding or save costs overall. If the defendants are found liable, there will still be a damages hearing. The damages hearing won’t be heard during the January 2025 sittings. When the damages hearing is called, the parties will have to select another jury. There will have to be some duplication of work as the parties and their lawyers “pick up the file” again to prepare for the damages hearing.

[30] Or there could be an appeal. If an appeal successful, there could be a second liability hearing, but only after the damages hearing and the appeal. The “ordinary practice” is to pursue a single appeal from decisions on liability and damages. See SS & C Technologies Canada Corp. v The Bank of New York Mellon Corporation, 2021 ONCA 601, at para 38.

[31] The defendants argue that a separate hearing might encourage settlement. There’s no evidence of that. It can be equally said that the costs of a long jury trial might encourage settlement.

[32] In sum, separate hearings may shorten the proceedings and save costs if the defendants are successful on the issue of liability and there’s no appeal. In all other circumstances, separate hearings may lengthen the proceeding and increase costs.

B. Can the issues be heard separately without repeating the evidence or risking inconsistent findings of fact?

[33] None of the defendants’ liability witnesses will have to testify at the damages hearing. The defendants also argue that Ronald won’t have to repeat his evidence at the damages hearing. There are no liability experts. Ronald and Sandra respond that the defendants are engaged in a ruse—they submit that the damages jury should hear about how this accident happened because it’s important context for understanding Ronald’s pain and suffering.

[34] In support of their argument, the defendants have filed the evidence from several parties given on examinations for discovery. The defendants argue that this evidence shows that Ronald caused the accident, and thus it’s “possible, if not likely” that he can’t prove liability. To begin, rule 39.04 bars the defendants from using their own discovery evidence on a motion. As a result, I don’t consider that evidence—it shouldn’t have been filed.

[35] Leaving aside that technical issue, I don’t see how this argument is relevant. The defendants are effectively asking me to find that Ronald is likely to be found liable for the car crash and, as such, there’s merit in litigating liability first. If the defendants are so sure there’s no genuine issue requiring a trial on liability given this evidence, they should’ve moved for summary judgment. But I can’t weigh evidence and make findings of fact on the merits of this action on this procedural motion.

[36] That all said, I agree with the defendants—liability and damages can be cleanly separated, and avoid the undue repetition of evidence or inconsistent findings of fact by the jury. In LaPointe, Justice Healey found that assessing the standard of care in that case required understanding the facts, including the severity of harm. The parties intended to call both fact witnesses and expert witness on both liability and damages. Here, there’s no overlap identified by any party.

[37] To the extent that Ronald and Sandra believe that narrative evidence about how the accident happened is relevant and necessary, they can introduce that evidence at the damages hearing.

C. Do separate hearings unduly prejudice any party?

[38] In LaPointe, Justice Healey found that the delivery of a jury notice “militates” against separating the issues (at para 73). She identified several challenges: it’s unlikely the same jury will decide both issues, and different juries may reach inconsistent verdicts. The defendants distinguish LaPointe by arguing that they delivered the jury notice, and they’re prepared to embrace any prejudice from separating the hearings.

[39] Rule 6.1.01 accounts for different juries hearing different issues. The risk of inconsistent findings by two juries means the issues aren’t “clearly severable”. But, if the court has found that they are, there’s no bar on different juries deciding the different issues. Indeed, the court has always been able to bifurcate the issues of liability and damages in a jury trial, although with the parties’ consent. In that case, the parties have “freely” given up their “right to have the issues tried by a single jury.” See Kovach v Linn, 2010 ONCA 126, at para 38.

[40] The defendants here elected to have the action heard by a jury. The wording of rule 6.1.01(2)(c) requires the court to consider whether the defendants’ request for separate hearings will either unduly prejudice or advantage that election. Since the defendants are the ones asking for separate hearings, they’re “freely” giving up their right to a same jury presiding over both cases. There’s no undue prejudice to their election. There’s also no evidence that their request will give them an advantage.

[41] Ronald and Sandra argue that they’ll be prejudiced by increased costs and delay. I’ve already considered costs. I consider delay next.

D. What is the effect of ordering a separate hearing at this stage?

[42] The trial sittings start on January 6, 2025. The accident was over 8 years ago. The action was set down for trial in 2022. I don’t know why it took so long to close pleadings and discover the case. I appreciate there’s a backlog that likely delayed the trial even after the action was set down. In any case, the need for timely justice demands that the trial of this action happen soon.

[43] If there are separate hearings, the damages hearing likely won’t be heard until January 2027. Leaving aside the delay since the start of the action, it’s prejudicial to effectively adjourn the trial for two years, even if there’s a chance that the defendants will succeed, and the damages won’t be necessary. Real and substantial prejudice arises “simply by reason of delay”. See Louis, at para 22.

E. Is the timing of the defendants’ request a relevant matter?

[44] The defendants argue that they made this request as soon as they could. They say their request didn’t crystallize until: (a) the rule was amended in July 2024; and (b) the companion action settled in late October 2024.

[45] I don’t accept their argument. This request is too close to trial. It’s too late.

[46] First, there’s no evidence that the defendants turned their mind to this issue before August 2024. Under the old rule, they could’ve sought Ronald and Sandra’s consent months or years ago. The arguments they make now about the severability of the issues were all known to them after the parties were discovered in 2018 and 2019. Ronald and Sandra’s concern about delay may have been mollified if the request had been made earlier.

[47] Second, the bar had notice that the rule was being amended long before July 2024. In LaPointe, the defendants teed up their motion before the amendment and it was heard the day after the amendment was enacted. The defendants here could’ve done the same. Or, faced with Ronald and Sandra’s objection in August, they could’ve moved then.

[48] Third, I don’t accept the defendants’ reliance on the settlement of the companion action. The defendants asked Ronald and Sandra to consent to bifurcation on August 1st, long before the companion action settled. The defendants can’t explain why the settlement of the companion action triggered their request, other than to say bifurcating both cases would’ve been too complex. But they didn’t think so in August.

[49] Finally, this issue wasn’t fully canvased at the pre-trial conference, when the parties confirmed they were ready for trial. Even accepting the defendants’ recollection that the issue was raised, they didn’t ask for a motion date (like they did for the defence medical) and there’s nothing in the pre-trial judge’s endorsement that suggests this was a live issue. The only evidence about this issue on this motion is the pre-trial conference report, which was filed long after the conference.

[50] When an action is placed on the trial list, all parties shall be deemed to be ready for trial. See Rules of Civil Procedure, r 48.07(a). By participating in the pre-trial conference and confirming that the trial would be 25 days long on both the issues of liability and damages, the defendants told the court they were ready. Ronald and Sandra were entitled to rely on that representation. There are only 22 business days between now and the start of this trial, which includes the winter break. The parties should’ve started preparing for the damages hearing long before today, meaning that Ronald and Sandra will have to throw away some of their preparation costs.

[51] Taking all of these factors into account, I endorse an order dismissing the defendants’ motion. The potential costs savings and efficiencies of separate hearings are outweighed by the delay and the risk of increased costs.

IV. Costs

[52] Further to the parties’ agreement, I endorse an order that the defendants shall pay Ronald and Sandra’s costs of this motion, fixed in the amount of $8000, inclusive of fees, taxes, and disbursements, on or before December 31, 2024.

V. Conclusion

[53] The newly amended rule 6.1.01 can and should play an important role in managing delays and costs in our civil justice system. Bifurcating the issues of liability and damages can lead to shorter trials and cost savings for both sides, without endangering anyone’s fair trial rights.

[54] But, in my view, this rule has to be invoked long before the pre-trial conference. That event is the beginning of the end of an action. Requesting bifurcation after the pre-trial conference suggests that the parties are only at the end of the beginning. If the culture of complacency that threatens to break our civil justice system is finally to be smashed, parties have to shorten trials and settle cases from the earliest moment possible.

Agarwal J Date: December 2, 2024 Corrected Decision: The text of the original endorsement, in paragraphs 1, 8, and 21( was corrected on December 5, 2024.

Footnotes

[1] Ms. Bloom made submissions for all of the defendants. Mr. Reeves attended the hearing as counsel but didn’t make submissions. Mr. Bowcock was the defendants’ affiant—he observed the hearing.

[2] The Notice to the Profession and Parties – Central West Region, updated effective July 1, 2024, requires the parties to “cooperate on the completion” of the pre-trial conference report form before the conference. The failure to cooperate in its completion may lead to cost consequences or an adjournment. I don’t know why the parties failed to follow this direction.

[3] There are several “placeholder” witnesses listed in the parties’ pre-trial conference report (i.e., “Rep. of Mr. Lube”, “Police Officer”, “Gym Employee”, “Investigator”, and “Employer of the Plaintiff”). Just over a month from trial, I have to assume that the parties have identified these witnesses, interviewed them, collected relevant documents, and confirmed their availability for trial, especially given these witnesses’ evidence is estimated to take almost a week. The defendants shall file an amended report on or before December 5, 2024, 4pm, correcting this oversight.