SUPERIOR COURT OF JUSTICE - ONTARIO
RE:
Thuvaraga Gajenthiran
Applicant
AND:
Toronto Standard Condominium Corporation No. 2261; Fieldgate Construction Management Ltd.
Respondents
AND
Turner Fleischer Architects, Bennington Construction Ltd., Camp Forming Ltd., Mississauga Iron Inc. and Cook Consulting Engineers
Third Parties
BEFORE:
Associate Justice P.J. Barnes
COUNSEL:
R. Hooper (counsel for plaintiff)
P. Tyborski (counsel for defendant TSCC 2261)
A. Burby (counsel for the defendant Fieldgate)
A. Chamanfar (student-at-law for Third Party Turner Fleischer Architects)
Nobody appearing for any other Third Parties
HEARD:
April 8, 2026 (by video conference)
ENDORSEMENT
Introduction/Relief Sought
1The plaintiff brings the within motion seeking an Order pursuant to Rules 1.04, 29.09, 6.01, and 6.1.01, bifurcating the within action (hereinafter the “main action”) and two parallel Third Party Claims (which I will define in further detail later on in this endorsement but will refer to in the short form throughout as A1 and A3) from two other third party claims (which I will also define in greater detail further on in this endorsement but will refer to in short form throughout as “A4”, and “A5”) that have been commenced by the main action defendants Toronto Standard Condominium Corporation No. 2261 (hereinafter “TSCC 2261”) and Fieldgate Construction Management Ltd. (hereinafter “Fieldgate”).
2The plaintiff further seeks an Order placing the main action, along with two parallel Third Party Claims (the first issued by TSCC 2261 against 2153973 Ontario Inc. which will be referred to as “A1”, and the second issued by Fieldgate against the third parties Turner Fleischer Architects Inc. and 2153973 Ontario Inc., which I will refer to as “A3”) on the trial list.
3In the alternative, the plaintiff seeks an Order appointing a Case Manager to the main action and Third Party actions. In the further alternative, the plaintiff seeks a timetable to advance the main action and Third Party claims to trial on a peremptory basis.
4There is also another Third Party Claim (“A2”) in existence that was issued by TSCC 2261 against Fieldgate on May 21, 2019, which all counsel present on the motion confirmed should be dismissed without costs.
5TSCC 2261 and Fieldgate oppose the proposed bifurcation of the main action, A1, and A3 from A4 and A5, and have refused to consent to have the main action, A1 and A3 proceed to the trial list, as they argue that A4 and A5 need to catch up procedurally to the main action, A1, and A3, due to there being common issues of liability and damages between the main action and all Third Party Claims which need to be resolved in a single hearing before a jury. Instead, TSCC 2261 and Fieldgate argue that a more appropriate remedy to get the litigation as a whole back on track is assignment to Case Management (which I indicated during argument was not possible for me to direct, as it would require the consent of all parties to the litigation, and not all of them were attending on the motion). Alternatively, TSCC 2261 and Fieldgate argue that the setting of one more strict timetable, which is peremptory on all parties, would be the more appropriate solution to getting this claim set on the path to a timely trial date.
Preliminary Issue
6As a preliminary matter, at the outset of the motion hearing, I alerted counsel present that I had noticed during my review of the parties’ materials the day prior to the return of the motion that two of the identified counsel for two of the third parties on A4 (Bennington Construction Ltd. and Camp Forming Ltd., neither of whom appeared at the return of the motion despite being properly served) had been, up until late January 2026, colleagues of mine at the in-house legal department of Intact Insurance. I further explained to counsel present that I knew one of the lawyers, but only tangentially, as we had worked in the same office in Mississauga for a number of years, but had never been on the same team or worked closely together on any files before. The other lawyer I was not familiar with at all and had never worked with, as they worked out of a separate office.
7Despite the fact that these two Intact in-house lawyers were not appearing on the motion before me, I indicated to counsel present that while I was of the view that I could be fully impartial in deciding the within motion, that this was still a prima facie or potential conflict that I was obligated to raise with them and seek their input about. On the basis of the advice that I provided to counsel present, they all agreed to waive the potential conflict that I had alerted them to and were in agreement to have me hear the merits of the motion.
8Counsel present on the motion also confirmed that the remaining Third Parties who were not present on the motion, despite being properly served with the motion materials (with the exception of Cook Consulting Engineers, which had not yet been served with the Third Party Claim on A5) had confirmed that they were content to abide by the decision of this Court on the within motion, whatever it may be.
9With apologies to Sir Paul McCartney, to say that the history of this litigation constitutes a “long and winding road” would be an understatement.
10The underlying action stems from a trip & fall accident that the plaintiff experienced on or about October 28, 2014, at an exterior concrete stairway adjacent to a commercial building located at 2761 Markham Rd. in the City of Toronto. There is no dispute that the occupier of the subject stairway as of the date of loss was TSCC 2261.
11The main action was issued against TSCC 2261 on October 17, 2016. TSCC 2261 subsequently issued a Third Party Claim (A1) against the original owner of the property (2153971 Ontario Ltd.) on June 25, 2017, and this Third Party defendant was noted in default on June 6, 2018. This claim is effectively dormant and counsel for TSCC 2261 candidly admitted during oral submissions that 2153971 Ontario Ltd. likely did not exist anymore and would very likely not be responding to or participating in the litigation going forward.
12TSCC 2261 then issued another Third Party Claim against Fieldgate Construction on May 21, 2019 (A2). Fieldgate was the general contractor responsible for the build of the development where the exterior concrete stairs were. The plaintiff amended the Statement of Claim on November 20, 2020, to add Fieldgate to the main action. Fieldgate then issued a Third Party Claim (A3) against Turner Fleischer Architects Inc. (the architectural firm responsible for the design of the property) and 2153973 Ontario Inc. on May 27, 2021, which has run parallel to the main action ever since.
13Discoveries in the main action and A3 proceeded over several dates in 2023. Discoveries for A1 had never taken place as that Third Party Defendant had been noted in default by TSCC 2261 some time ago. Over the course of examinations for discovery, and after two litigation timetables had not been adhered to, further documentation was obtained by TSCC 2261 that identified three subcontractors that had worked on construction of the development who were responsible for the design and/or construction of the staircase where the plaintiff allegedly fell. TSCC 2261 subsequently issued a Third Party Claim (A4) against three subcontractors identified during the documentary discovery process (Bennington Construction Ltd., Camp Forming Limited, and Skytec Structural Steel Ltd.) on March 1, 2024. The Third Party Claim against Skytec Structural Steel was subsequently amended to substitute it with Mississauga Iron Inc. on March 14, 2025, when the correct identity of that contractor was discovered. Counsel for TSCC 2261 candidly admitted that A4 had not proceeded forward in a timely manner, as pleadings were not yet closed and discoveries had only been scheduled for the Fall of 2026, roughly 2 ½ years after A4 was issued.
14Fieldgate subsequently issued a Third Party Claim (A5) against Cook Consulting Engineers (who was allegedly involved in a consulting capacity on the design of the staircase in question) on March 12, 2024. This A5 Claim has been stalled for quite some time and still has not been properly served by Fieldgate, as it appears that Cook Consulting Engineers may have previously been evading service. Counsel for Fieldgate appearing on this motion confirmed that no motion has yet been commenced to extend the time for service or validate service on Cook Consulting Engineers, as she had only recently been assigned carriage of the file.
15Neither the A4 nor the A5 Third Party Actions, issued by TSCC 2261 and Fieldgate, respectively, were ever objected to by the plaintiff, despite the fact that these Third Party Claims were issued after two litigation timetables had been agreed to and accepted by the Court.
16A mediation was held involving the parties in the main action and A3 in late October 2023, which was unsuccessful. The plaintiff maintains that the main action and A3 have been trial-ready since November 2023, when the Trial Record was passed.
17Further, jury notices have been passed in the main action by TSCC 2261 and Fieldgate, by Turner Fleischer Architects in A3, as well as by the Third Party Mississauga Steel Inc. in A4. Counsel present on the motion confirmed that the two remaining Third Party Defendants in A4 (Bennington Construction and Camp Forming Ltd.) had only filed Notices of Intent to Defend as of the date of this motion. In addition, as A5 has not yet been served, no pleadings have been delivered on that Third Party Claim, but a jury notice has been included with that Third Party Claim.
Applicable Rules
18The thrust of the plaintiff’s argument in favour of bifurcation is first grounded in Rule 29.09, which reads as follows:
Prejudice or Delay to Plaintiff
29.09 A plaintiff is not to be prejudiced or unnecessarily delayed by reason of a third party claim, and on motion by the plaintiff the court may make such order or impose such terms, including an order that the third party claim proceed as a separate action, as are necessary to prevent prejudice or delay where that may be done without injustice to the defendant or the third party. R.R.O. 1990, Reg. 194, r. 29.09.
19The plaintiff also relies on Rule 6.1.01 in support of the relief she is seeking, which reads as follows:
Separate Hearings
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. O. Reg. 175/24, s. 1.
(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.
Plaintiff’s argument
20The plaintiff’s primary argument is, in accordance with Rule 6.1.01 (which came into effect on July 1, 2024), bifurcation of the actions in the manner suggested is justified based on the fact that the main action (and effectively A1 and A3) is, at its heart, an occupier liability action, whereas the remaining Third Party Claims that have yet to catch up to the main action (A4 and A5) are exclusively contractual disputes between the defendants and Third Parties, which are derivative of the underlying occupier liability action, and can therefore appropriately be severed from the main action and A1/A3, in order to allow the plaintiff’s personal injury claim to reach trial in a timely manner.
21In other words, at trial, the plaintiff contends that liability for her alleged trip & fall will either be established (or not) against TSCC 2261 (the undisputed occupier of the subject premises), Fieldgate (which was the general contractor that oversaw construction of the staircase in question) and/or Turner Fleischer Architects (the architectural firm apparently responsible for designing the staircase in question). If liability is not established against these defendants in the trial of the main action and A1/A3, then the derivative contractual claims advanced in A4 and A5 effectively evaporate. However, if liability is established at trial against any/all of TSCC 2261, Fieldgate, and/or Turner Fleischer, then the plaintiff maintains that A4 and A5 can proceed as a separate hearing between the defendants and the remaining Third Parties after liability and damages have been decided, as the dispute in A4 and A5 at that point would only deal with who was ultimately responsible for the faulty design/construction of the staircase in question. In any situation, TSCC 2261 as the undisputed occupier of the staircase in question will be responsible for the plaintiff’s damages if liability for the plaintiff’s fall is established at trial. The plaintiff maintained that A4 and A5 are inherently a separate contractual dispute that the plaintiff has no involvement or interest in.
22The plaintiff further argues that while a peremptory strict timetable is a nice idea in theory, it will almost certainly result in further substantial delay to the plaintiff’s claim reaching trial, which will be substantially prejudicial to her interests, which is precisely what Rule 29.09, combined with the new Rule 6.1.01, is meant to avoid.
23The plaintiff noted that in A4 and A5 pleadings have not yet closed, although discoveries in A4 are tentatively scheduled for the Fall of 2026. However, in A5, the plaintiff notes that Cook Consulting Engineers has not even been served yet with the Third Party Claim by Fieldgate. The plaintiff argues that the time that will be spent with having the two remaining counsel in A4 deliver their pleadings, followed by the substantial documentary review that will be necessary for all A4 counsel to complete, coupled with the fact that there will likely be a further substantial delay associated with service of the Third Party Claim in A5, will likely be followed by another probable delay in waiting for defence counsel to be appointed on A5.
24Then, taking into consideration the time that that counsel will need to get up to speed on productions and then get discovery on A5 scheduled and completed, this means that it will effectively be 1-2 years at least before both A4 and A5 will have likely “caught up” to the main action and A1/A3, which by that point will be some 13-14 years after the date of loss. The addition of all these additional counsel in A4 and A5 then effectively turns a 2-3 week trial into a 6-8 week long trial, which will probably then add another 2-3 years at least before a trial date in Toronto is confirmed.
25The plaintiff maintains that the end result of the anticipated further delay that will be caused by allowing A4 and A5 to catch up to the main action and A1/A3 will result in her suffering substantial unnecessary additional delay, which by virtue of Rule 29.09 she should not need to endure any further, as the Third Party Claim holdup in the case arises from a contractual dispute that she is ultimately not privy to, which should not keep her from having her personal injury claim, which is grounded in occupier liability, adjudicated on its merits.
26The plaintiff otherwise argues that the criteria outlined in the new Rule 6.1.01(2), which has been in effect since July 1, 2024, permits the bifurcation she is seeking, as bifurcation would first confirm whether the A4 and A5 Third Party Defendants bear any liability in contract for what is alleged to be the faulty design of the staircase in question. Moreover, the plaintiff maintains that the main action and A1/A3 can be clearly severed from A4 and A5 and heard separately without unduly repetitive evidence being called or risking inconsistent findings of fact, due to the inherent difference that exists between the nature of the claims being advanced (i.e. occupier liability versus contractual liability of the Third Parties if occupier liability is established).
27The plaintiff further maintains that the presence of jury notices that have been passed in the main action and A3, and the jury notice that has been passed in A5 (by Mississauga Iron Inc.) should not act as a barrier against the bifurcation that she is seeking, as in her view, liability and damages in the main action/A1/A3 can be decided by one jury, and liability for the contractual dispute that will be adjudicated in A4 and A5 can be decided by a separate jury.
28On this point, the plaintiff argues that the decision of Healey J. in LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040, where it was held that the presence of a jury notice militates against splitting issues of liability and damages is distinguishable due to the different factual matrix that was before my learned colleague in that case.
29In LaPointe, the underlying claim stemmed from injuries suffered by the young plaintiff in a 3-pitch softball game that had been sanctioned by his school. The defendant in that case (who was seeking bifurcation of liability from damages, with the liability trial coming first) argued that the witnesses required to deal with liability and damages could effectively be separated from each other, which would weigh in favour of the issue of liability first being determined by a jury before a potential second trial on the issue of damages. The plaintiff’s voluminous medical records would not be required to be dealt with if liability were to be determined first, and a substantial savings in trial time would be achieved, if an unfavourable verdict on liability were to be returned by the jury against the plaintiff (which would obviate the need for a damages trial altogether).
30The plaintiff in LaPointe argued to the contrary that the power of a Court to bifurcate under the new Rule 6.1.01 should be narrowly circumscribed and must be exercised in the interest of justice and only in the clearest of cases. There was unquestionably some overlap between liability and damages witnesses in that case, and in addition, trial preparation had already begun in earnest (the motion was heard in July 2024 with a September 2024 trial date being on the books). In addition, the plaintiff in LaPointe argued that use of the word “clearly” in Rule 6.1.01(2)(b) conveyed the drafters’ intent that issues should not be separated unless they can truly be compartmentalized, which would be very difficult, if not impossible to do when there was an overlap of witnesses or evidence on the issues in dispute.
31While the Court in LaPointe ultimately refused to grant the defendant’s request to bifurcate liability from damages, in part due to the presence of a jury notice (which was interpreted to mean only one jury, as opposed to separate juries, based on the wording of the new Rule, coupled with s. 108(1) of the Courts of Justice Act, and the Court of Appeal’s holding in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126), the plaintiff in the motion at bar pointed out that LaPointe dealt with a request for bifurcation of liability from damages on what was effectively only one cause of action (grounded in negligence).
32This is different from the present case, as the main claim and A1/A3 are effectively an occupier liability dispute, whereas the trailing A4 and A5 Third Party Claims are derivative contractual claims between the defendants and Third Parties, which will not alter the fact that TSCC 2261 (by virtue of its occupier status for the staircase in question), Fieldgate (as general contractor for the premises where the plaintiff’s fall is alleged to have occurred), and/or Turner Fleischer Architects (the firm ultimately responsible for the design of the build) will ultimately be exposed to the plaintiff’s damages if liability for the plaintiff’s fall is established. Because of the fundamental difference between the nature of the disputes between the main action/A1/A3 and A4/A5, the plaintiff submits that it would be entirely appropriate for one jury to hear the main action and A1/A3 (the occupier liability claim) on both liability and damages, and then a separate jury be seated to hear the derivative contractual claim in A4 and A5, as by then the damages issue would have been determined at the first trial and there would be a specific monetary figure that would define the quantum of damages being argued over in the A4 and A5 Third Party Claims. The plaintiff and her counsel would also be spared from having to participate in this second trial altogether.
33Counsel for the plaintiff on the motion at bar (who was not the lawyer with initial carriage of the plaintiff’s claim) further admitted that while his predecessor’s handling of the file had caused a significant amount of delay in having the claim move forward in a timely manner over the years, he was doing his best to get the file back on track since taking over as counsel for the plaintiff in March 2024, and maintained that his client should not be penalized due to what amounted to the inaction displayed by her former lawyer.
Defendants’ argument
34TSCC 2261 and Fieldgate were effectively aligned in arguing that much of the delay in the litigation and prejudice being claimed by the plaintiff was due to the inaction of the initial plaintiff lawyer (again, not the lawyer appearing on this motion for the plaintiff, who only came on the file in/around March 2024) for years at a time in moving the plaintiff’s action forward.
35TSCC 2261 admitted that while there had been some delay on its part which had caused the claim to stall in the past, it had nevertheless not acted inappropriately or dragged its heels in having the matter proceed ahead expeditiously. When it realized who the subcontractors in question were, it proceeded to issue A4 in a timely manner, despite the fact that two agreed-upon litigation timetables had already been breached by that point. TSCC 2261 further noted that its issuance of A4 was not objected to at the time by the plaintiff.
36Fieldgate further admitted that the handling of the file by its previous counsel (not the counsel appearing on this motion for Fieldgate) did not proceed in an expeditious way, but that new counsel was moving with haste to rectify the delay that A5 was causing by it not having yet been served properly. Similar to TSCC 2261 above, Fieldgate noted that the plaintiff did not object to the issuance of A5 after two litigation timetables had already been breached.
37TSCC 2261 and Fieldgate further rely on the decision of Master Short in NuVision Health Inc. v. Teva Canada Ltd., 2020 ONSC 8, in support of their argument that despite the inherent delay associated with its issuing of A4, there was no prejudice to the plaintiff in the case at bar that could not be compensated for by an award of costs, if the main action and all third party claims were to remain united going forward. TSCC 2261 and Fieldgate otherwise argue that considering the delay that the entire action has faced thus far, the additional delay associated with allowing A4 and A5 to catch up to the main action, A1, and A3 is minor, when compared to the potential monetary and temporal consequences of bifurcation and proceeding with two separate trials.
38In NuVision, the Court, citing inter alia Rule 29.09, found that the delay caused by the addition of a Third Party Claim, in and of itself, without more, would not amount to prejudice to the plaintiff that could not be compensated for by an award of costs. See NuVision at paragraphs 31 and 32.
39TSCC 2261 argues a large portion of the dispute at trial will relate to the issue of liability (with a material amount of evidence being led by likely all defendants with respect to the design of the staircase in question), and that to permit a bifurcation in the manner requested by the plaintiff would result in “all of the witnesses on behalf of the defendants and third parties” needing to attend a second trial for A4 and A5, which would be a waste of time, money, and court resources, and that this overlap would violate the tenet of Rule 6.1.01(2)(b).
40TSCC 2261 further argues that the “issues in the main action and Third Party actions overlap entirely and cannot be compartmentalized”, and that due to this fact, if two juries were to decide the two proposed trials (between the main action, A1, and A3, and subsequently A4 and A5), this would run the risk of inconsistent verdicts being reached.
Analysis
41As the current iteration of Rule 6.1.01 has only been in effect since July 1, 2024, there appear to have only been two published decisions delivered by the Superior Court to date that have considered the new Rule in the context of a party’s request to bifurcate a proceeding. These consist of the aforementioned LaPointe decision, and Wheelans v. Kuss, 2024 ONSC 6728.
42In LaPointe, Healey J. provided a comprehensive outline of the history of Rule 6.1.01, the reasoning behind its various amendments over the years, the previous decisions of the Court that had considered it, as well as the applicable law regarding the inherent power of the Court to bifurcate trials. See LaPointe at paragraphs 15-34 inclusive.
43Specific consideration was given in LaPointe at paragraphs 28-30 to the ruling of the Court of Appeal in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126, which confirmed that the Court (prior to January 1, 2010, when Rule 6.1.01 initially came into force) lacked the jurisdiction to bifurcate the issues when a valid jury notice was in place. This was based on s. 108(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (hereinafter “CJA”), which read (and still reads) as follows:
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.
44The language employed by s. 108(1) of the CJA was interpreted by the Court of Appeal in Kovach to mean that a party to a lawsuit could require that the issues be tried by a single jury, and that to allow separate juries to hear different issues would run contrary to the “well established principle that a trier of fact must remain seized of an action until judgment is pronounced”. See LaPointe at paragraphs 30-31.
45It was otherwise noted at paragraph 34 of LaPointe that the new Rule 6.1.01 which had come into effect in July 2024 had not been accompanied by a legislative change to the aforementioned s. 108(1) or s. 138 of the CJA (the latter section mandating that as far as possible, multiplicity of legal proceedings are to be avoided).
46Healey J. concluded that the effect of the lack of amendment to ss. 108 and 138 of the CJA was that the new rule 6.1.01 was “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”. See LaPointe at paragraph 45.
47Healey J. otherwise noted that it remained unclear whether the inherent jurisdiction of the Court, which had “historically eschewed severing issues in jury cases because of lack of jurisdiction, may still be exercised”, and that it was better left to an appellate level court “to provide clarity on these issues”. See LaPointe at paragraphs 72-73.
48My learned colleagues in LaPointe and Wheelans ultimately both dismissed the requests that were being made to bifurcate liability from damages, as the moving parties in those matters had not satisfied the Court that the criteria permitting bifurcation enumerated in Rule 6.1.01(2) had been met. Specific consideration was given by the Court in each case to the fact that jury notices had been passed in both actions, and that this on its face militated against bifurcation, particularly due to the potential for two separate juries to come to inconsistent verdicts if they were to decide liability and then damages arising out of what was effectively one cause of action. See LaPointe at paragraph 75 and Wheelans at paragraph 38.
49However, I note that in Wheelans, Agarwal J. indicated the following at paragraph 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.
50I agree with the reasoning of Agarwal J. on this point, that the new Rule 6.1.01 allows for the prospect of different juries hearing different issues, but that if there is a risk of inconsistent findings by the two juries, this means that the issues cannot be “clearly severable” (contrary to subsection (2)(b) of Rule 6.1.01) and that bifurcation in that circumstance will not be permitted.
51Otherwise, the criteria that shall be considered by a court when deciding whether to allow bifurcation (which I will discuss in further detail below) is outlined in Rule 6.1.01(2) as follows:
(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.
(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;
52With respect to criteria “a”, ordering separate trials between the main action, A1, and A3 (the occupier liability action), and A4 and A5 (the derivative contract dispute), with the issues of liability and the plaintiff’s damages to be heard first by a jury in the occupier liability action, has the potential to dispose of the derivative contract dispute altogether. If it is established at the first trial that the staircase in question was built properly to code, then I agree that the plaintiff’s claim will have failed, which would render moot the derivative contract dispute in A4 and A5, and save the second trial from having to proceed (which would result in a substantial savings of trial time and costs for all parties).
53In the alternative, if the plaintiff is successful on the issue of liability in a first trial between the main action, A1, and A3, but this liability is found by the jury to have been due to a lack of proper maintenance/inspection of the staircase in question (as opposed to an inherent design or construction flaw), then the derivative A4 and A5 claims also fail, as liability for the plaintiff’s fall would then be borne exclusively by the occupier, TSCC 2261. In which case, the second trial in A4 and A5 would also be disposed of, resulting in significant savings of trial time and costs of all parties.
54If, however, liability against the defendants in the trial of the main action, A1, and A3 is confirmed due to a design/construction flaw in the staircase, and the plaintiff’s damages are also decided in this first trial, then the plaintiff would receive her compensation in a much more timely manner than she would if all of the actions remained joined together and proceeded to trial years down the road. The A4 and A5 actions could continue in a subsequent future trial between the liable defendants in the first trial and the A4/A5 Third Party Defendants, with the benefit of the plaintiff’s damages already having been decided by the jury in the first trial. This would significantly simplify the second trial on A4 and A5, as it would then effectively become a liability-only trial, which would also result in substantial savings of trial time and costs for counsel that need to be involved in the second trial.
55Moreover, in a situation where liability and damages are established in the first trial, the plaintiff would enjoy the benefit of receiving the compensation owed to her in a much timelier fashion, which would result in her and her counsel not having to participate at all in the second trial between A4 and A5. This would result in a significant savings of time and costs for the plaintiff and her counsel, and not force them to sit through days of trial time dealing with a contractual dispute that they are not involved in.
56If the claims are bifurcated in the manner that the plaintiff seeks, then this will also force TSCC 2261 and Fieldgate to “sharpen their pencils” and obtain expert opinion(s) that buttress their theory of the case in a timelier manner. If TSCC 2261 and/or Fieldgate ultimately obtain expert engineering and/or damages opinion(s) that are unhelpful to their liability position in the main action/A1/A3, then this will likely serve as an impetus to engaging in reasonable settlement discussions regarding the plaintiff’s claim.
57While there would inevitably be some duplication of trial preparation effort for some (but not all) counsel and the time involved in picking a jury for A4 and A5, if the main action/A1/A3 proceed all the way through to verdict, the cost savings involved in significantly streamlining the dispute in the manner described more than make up for that. Accordingly, on balance, I find that criteria “a” falls in favour of the plaintiff’s request to bifurcate the main action, A1, and A3, from A4 and A5.
(b) whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact;
58At this point, the plaintiff reportedly has an expert engineering opinion that supports her theory of liability against TSCC 2261 as the occupier of the subject property. TSCC 2261 and Fieldgate both argue that there will be an overlap of witnesses on liability between the main action/A1/A3 and A4/A5, but when pressed on this issue during oral submissions, both counsel admitted that they were not in possession of any expert reports that would rebut the plaintiff’s theory of liability at this point. Both counsel also admitted that they were not in possession of any expert defence medical or biomechanical/human factor opinion(s) that would speak to causation for the plaintiff’s injuries and/or the nature of her alleged impairments resulting from her fall.
59While TSCC 2261 argued that the bifurcation sought by the plaintiff will result in “all the defendants and third parties” having to re-attend a second trial, their counsel was given an opportunity to specify during oral argument where the areas of overlap would likely be on the issues of liability and damages between the main action/A1/A3 (the occupier liability action), and A4/A5 (the derivative contract action) that would work against granting a bifurcation in the manner requested by the plaintiff. Counsel was unable to provide any specific examples where his theoretical experts (or any other witnesses for that matter) would need to testify twice, if the actions were to be bifurcated in the manner suggested by the plaintiff.
60I otherwise agree that the bifurcation in the manner suggested by the plaintiff would effectively separate the occupier liability dispute from what is, in reality, a derivative contractual dispute that she has no privity to and also allow the Court to deal with her damages in a timelier way.
61Despite the fact that the defendants argue that liability will be heavily contested at trial and that there will inevitably be at least some overlap between witnesses (which they were unable to specify), TSCC 2261 counsel conceded during oral submissions that as his client was unquestionably the occupier of the staircase where the plaintiff fell, it would therefore likely be the defendant first in line to pay out any damages that may be owing to the plaintiff if liability is established at trial.
62I also do not see how inconsistent findings of fact could realistically be at risk by having a jury decide liability for the plaintiff’s fall (based on the principles of occupier liability for TSCC 2261 and/or any construction or design flaws of the staircase that Fieldgate and/or Turner Fleischer Architects would be responsible for as the general contractor and the architectural firm responsible for the design of the build, respectively), and also the plaintiff’s damages in the first action, with a separate jury deciding contractual liability of the subcontractors in the second action, if the matter proceeds that far.
63If anything, the determination/narrowing of the liability and damages issues in the first bifurcated trial will almost certainly result in a streamlining of the A4 and A5 claims, if it turns out that liability for the plaintiff’s fall was found by the jury in the first trial to have resulted from a faulty design or construction of the staircase in question. Liability for the faulty design/construction of the staircase would then be res judicata, and Fieldgate and/or Turner Fleischer Architects would then be able to litigate against their subcontractors/consulting experts in A4/A5 as to which one of them was ultimately responsible for the faulty construction or design flaw.
64On balance, I find that criteria “b” also falls in favour of the plaintiff’s request to bifurcate the main action, A1, and A3, from A4 and A5.
(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;
65While TSCC 2261 and Fieldgate both relied upon the NuVision decision, supra, to support their contention that the additional delay that would be experienced by allowing A4 and A5 to catch up to the main action, A1, and A3, would constitute prejudice that could be compensated for by an award of costs to the plaintiff, and that delay and inconvenience to the plaintiff caused by issuing a Third Party Claim did not amount to prejudice within the context of Rule 29.09, I note that Master Short, in citing his approval (at para. 32) of the decision of Clark J. in Pickering Harbour Co. v. Barton, [2006] O.J. No. 4394, was actually considering the issue of prejudice contemplated by Rule 29.02(1.2), as opposed to Rule 29.09 specifically (which is the Rule that the plaintiff in the motion at bar is relying on).
66Moreover, the NuVision decision dealt with the issue of leave being sought by the defendant Teva to issue a Third Party Claim pursuant to Rules 26.01 and 29.02(1.2), after the ostensible expiry of the limitation period, as opposed to consideration of the language of Rule 29.09 by itself.
67The action in NuVision was also significantly younger than the case at bar, having been commenced in February 2017, with the motion to add a Third Party Claim being heard on November 19, 2019, some 2 years and 9 months after the issuance of the Statement of Claim (as opposed to the nearly 9 years and 8 months that elapsed in the present case between the issuance of the Statement of Claim and the issuances of A4 and A5).
68The Third Party Action in NuVision was otherwise being advanced by the defendant Teva against three parties that had purchased the assets of NuVision, on the basis that the asset sale had violated the Ontario Bulk Sales Act, Fraudulent Conveyances Act, and Assignments and Preferences Act, which was effectively intended to defeat a counter-claim by Teva for disgorgement of $300,000 that had been paid by Teva to NuVision for services (that had not been rendered) arising out of the contract in dispute. In other words, the disgorgement being sought in the proposed Third Party Claim by the defendant Teva was directly connected and germane to the contractual breach being dealt with in the main claim, and the defendant Teva’s ability to be able to collect on its counter-claim.
69This is distinguishable from the case at bar, which effectively deals with two separate causes of action (negligence and contractual breach, where the plaintiff has no privity with the latter).
70The Court in NuVision was otherwise dealing with the issue of prejudice to a plaintiff that was prohibited by Rule 29.09 in the context of a defendant’s request to issue a Third Party Claim after a limitation period, which also is not the case in the motion at bar. There has been no claim by any of the parties in the motion at bar that the Third Party Claims in A4 and A5 were issued in violation of any limitation period. The Court otherwise held that it was clear that the plaintiff would suffer significant prejudice (in the context of Rule 29.09) if leave was granted to issue a Third Party Claim after the expiry of a limitation period. See NuVision at para. 65.
71Moreover, the decision of Master Short in NuVision did not focus on or consider the “unnecessarily delayed” language contained in Rule 29.09. In the motion at bar, the plaintiff argues that permitting A4 and A5 to catch up to the main action, A1, and A3 will result in an additional unnecessary delay that will result in significant additional prejudice her ability to have her personal injury claim adjudicated on its merits in a timely manner. As such, I am of the view that the facts and ratio of the NuVision decision are distinguishable and are ultimately not helpful to TSCC 2261 and Fieldgate in resisting the bifurcation relief that the plaintiff seeks.
72The plaintiff in the motion at bar is effectively citing Rule 29.09 in conjunction with Rule 6.1.01 in support of the bifurcation she seeks, which is not the same factual and legal context that was before Master Short in NuVision. In my view, the refusal of TSCC 2261 and Fieldgate to consent to the main action, A1, and A3 being placed on the trial list, and insisting the A4 and A5 claims be brought to the same stage as the trial-ready claims is causing unnecessary delay (that is specifically considered in Rule 29.09), which the Court can remedy with an Order that allows A4 and A5 proceed as a separate action, as long as this may be done without injustice to the defendant or third party.
73I fail to see how an Order permitting bifurcation would cause undue prejudice to any of the parties involved. By having the main action, A1, and A3 determined first on liability and damages, the plaintiff will get her day in court more quickly, and the exposure of the TSCC 2261, Fieldgate, and Turner Fleischer defendants will likely be streamlined by the determination of liability. Further, the Third Party Defendants in A4 and A5 will know ahead of time if they have any exposure going forward after the first trial, and will be able to focus on liability in a second trial without having to contest the quantum of the plaintiff’s damages.
74As TSCC 2261, Fieldgate, and Turner Fleischer Architects will/should be aligned with each other at a first trial on contesting liability and the plaintiff’s quantum of damages, this anticipated alignment also indirectly benefits the Third Party Defendants in A4 and A5, who have signified to the parties present on this motion that they are content to proceed with whatever direction the Court decides in this matter. In other words, if bifurcation is permitted, the Third Party Defendants in A4 and A5 will reap the benefit of the “heavy lifting” completed by TSCC 2261, Fieldgate, and Turner Fleischer Architects in contesting liability and the quantum of the plaintiff’s damages in the first trial, which should simplify the issues to be decided in a second trial on A4 and A5.
75If the Third Party Defendants in A4 were truly concerned about being prejudiced by the bifurcation that the plaintiff is seeking (with respect to liability or quantification of the plaintiff’s damages), then presumably they would have shown up to contest this relief. However, they did not and will need to live with the result of this motion.
76Further, while I cannot speculate as to how Cook Consulting Engineers may have responded to this motion (as it has not yet been served with the Third Party Claim in A5), it also stands to benefit by having TSCC 2261, Fieldgate, and Turner Fleischer Architects do the “heavy lifting” first by contesting liability and damages with the plaintiff.
77In other words, it is altogether unlikely that the A4 and A5 Third Party Defendants would be in a better position to resist or dispute the plaintiff’s damages any more than TSCC 2261, Fieldgate, and/or Turner Fleischer Architects would be.
78The presence of a jury notice on the main action/A1/A3 and A4 (and likely A5, whenever that defendant gets around to first remedying its service problem by way of motion and then delivering its pleadings after being served) otherwise does not prevent any of the parties from having their disputes determined by a jury when the time comes, pursuant to the new Rule 6.1.01 and the reasoning of Agarwal J. in Wheelans. One jury will determine liability for the plaintiff’s fall and will also assess her damages. A second jury, if necessary, will determine if there is any contractual liability of any of the subcontractors to the construction project, if it turns out that the plaintiff’s fall was due to a construction or design defect in the staircase (which TSCC 2261 is ultimately responsible for as the occupier). There is no need for Jury 1 to be held over to also decide the issue of liability in the A4/A5 actions, as the matter of liability for the plaintiff’s fall (and her damages) can be dealt with by Jury 1, and a separate jury can determine the liability issue(s) as they exist in A4 and A5.
79This situation is altogether different than the facts that were before my learned colleagues in LaPointe and Wheelans, where the defendants were asking for liability to be determined first prior to damages being assessed, and where the logistics of holding a jury over for months upon months (so that the same jury could decide both issues) were deemed by the Court to be an impermissible hurdle.
80Accordingly, on balance, I find that criteria “c” also works in favour of the bifurcation relief that the plaintiff is seeking.
(d) the impact of ordering a separate hearing at the applicable stage in the proceeding
81I note that the stage that the plaintiff’s pending litigation is currently sitting at (i.e. discoveries in main action, A1, and A3 completed, mediation already held, and these matters having been set down for trial, but with no trial date on the immediate horizon despite the trial record having been passed 2 ½ years ago) is also different from the facts that were before my learned colleagues in the LaPointe and Wheelans cases.
82In LaPointe and Wheelans, the motions by the defendants to bifurcate liability from damages (with liability being determined first) were brought only several months and several weeks (respectively) out from set trial dates, where trial preparation had already begun by all counsel in earnest. Whereas in this case, the parties are nowhere close (at the moment) to obtaining trial dates, and have not yet begun any significant trial preparation, as the discovery dates in A4 and A5 will not be returnable until the Fall of 2026 at the earliest (and likely even later than that, as the A5 claim has not even been served yet on that Third Party Defendant, and the likelihood of that counsel being available for discoveries on only a few months’ notice is questionable when they will need to contend with the schedules of 7 other lawyers coupled with significant documentary review).
83Bifurcation would likely bring the main action, A1, and A3 to trial (estimated to be in the short trial range of 15 days at present, involving four lawyers) within 2-3 years at most. Allowing A4 and A5 to proceed in tandem would expand the proceeding from four lawyers to eight in total, which would probably end up pushing completion of discoveries well into 2027, once defence counsel for A5 is assigned, after the defect in service of A5 is rectified. The matter then unquestionably becomes a long trial (6-8 weeks, in the estimation of all counsel present on the motion) at that point. This would push the trial date out years further.
84Having the main action, A1, and A3 proceed to trial in a timelier manner will also force the defendants to develop their theories of the case and serve their requisite expert reports with greater haste. As of yet, TSCC 2261 and Fieldgate have confirmed that they have no expert opinion(s) that justifies their stated general denials on liability or damages. I expect that the principals of these parties will want to know sooner rather than later what kind of exposure they may face with the plaintiff, and if their preliminary position(s) have merit and/or are defensible. Similarly, the plaintiff should know sooner rather than later the case she will need to meet if she wishes to push forward to trial.
(e) any other relevant matter.
85The plaintiff, TSCC 2261, and Fieldgate went to significant lengths in their written materials and in oral argument to point fingers at each other for being a substantial cause of the delay that the main action and all Third Party Claims have experienced thus far. Each side’s position was essentially that the relief being sought/opposed should either be granted/not granted due to the delay that each party claimed the other side was responsible for.
86In my view, the parties to a lawsuit should not be benefitted or prejudiced due to lack of diligence of a previous counsel or an opposite counsel in pushing a matter forward, or because of the lack of speed in which counsel for a Third Party Defendant is appointed (which the issuing defendant has little to no control over, short of threatening to note in default). This comment is not meant to cast aspersions in any way upon the counsel appearing on this motion, who by all accounts have attempted to advance the litigation as best they can under the circumstances that they were each dealing with.
87There is otherwise a well-established principle in Ontario that the Court should be concerned mainly with the rights of litigants, not the conduct of counsel. See Chiarelli v. Wiens.
88Although the Chiarelli case dealt with a case of where a plaintiff was requesting an extension of time to extend service of a Statement of Claim, this principle is nevertheless applicable, in my view, to the facts before the Court in the motion at bar. None of the litigants on this motion should benefit or suffer due to what was ultimately litigation inertia of their previous counsel or opposing counsel. Effectively, there has been delay caused by all sides of this action at one time or another, which in my view constitutes a “wash”, and therefore does not work for or against either the plaintiff or TSCC 2261 or Fieldgate.
89It is ultimately in the interest of all parties to have this significantly aged litigation placed back up on the rails toward a timely final resolution.
Disposition
90While I acknowledge that s. 138 of the Courts of Justice Act dictates that “as far as possible, multiplicity of legal proceedings shall be avoided”, Rule 1.04 also mandates a liberal interpretation of the Rules of Civil Procedure to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.
91In my view, the situation faced by the litigants in this action neatly encapsulates the type of scenario that Rules 29.09 and 6.1.01 are meant to address. The dispute involved in the main action/A1/A3 (in tort) is sufficiently distinct from the contractual issue that is at the heart of A4 and A5 and therefore makes bifurcation permissible, even with jury notices in place in both actions, as the liability buck ultimately stops with TSCC 2261, Fieldgate, and/or Turner Fleischer Architects (being the undisputed occupier, general contractor, and architectural firm designer for the staircase in question where the plaintiff fell).
92The claim has dragged on too long as it is. The Court cannot countenance the further significant unnecessary delay that the main action, A1, and A3 will endure if the litigation stalls further to allow the derivative A4 and A5 claims to catch up (which have already been idling for over two years at this point). The plaintiff, who has already waited nearly 12 years to have her claim heard, will endure real and substantial prejudice from the additional significant delay that will occur if the main action and all Third Party Claims remain united going forward. See Wheelans at paragraph 43.
93If I am incorrect in my use of Rule 29.09 as justification for the relief being sought by the plaintiff, I would have nevertheless reached the same conclusion in permitting bifurcation of the actions based on the criteria outlined in Rule 6.1.01 and the principles discussed by my learned colleagues in the LaPointe and Wheelans decisions alone.
94It is ultimately the Court’s responsibility to “move the freight” of the litigation that comes before it. Accordingly, the plaintiff’s motion is granted.
95Order to go bifurcating the main action, A1, and A3 from A4 and A5, placing the main action, A1, and A3 on the Toronto trial list forthwith, and dismissing A2 without costs. Counsel can prepare an Order to this effect for my signature and forward to my assistant trial coordinator Teanna Charlebois (Teanna.Charlebois@ontario.ca) when its form and content have been agreed upon.
96The parties are otherwise encouraged to resolve the issue of costs between themselves. If the parties cannot negotiate a resolution of costs, then the plaintiff’s cost submissions of no more than 3 double-spaced pages (exclusive of a costs outline) can also be sent to my assistant trial coordinator no later than 14 days after the release of this endorsement, followed by the responding cost submissions of TSCC 2261 and/or Fieldgate (of no more than 3 double-spaced pages, exclusive of a costs outline) no more than 21 days after the release of this endorsement.
Associate Justice Paul J. Barnes
Date: Apr 27, 2026