CITATION: Hollywood v. Kehoe, 2026 ONSC 3808
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Billy-Jo Hollywood, Plaintiff
AND:
Elizabeth Lynn Lake and Jennifer Kehoe, Defendants
RE: Jennifer Kehoe, Plaintiff
AND:
Elizabeth Lynn Lake, AECON Group Inc., John Doe Construction, Defendants
BEFORE: Muszynski J.
COUNSEL: Bryan Rumble, for Billy-Jo Hollywood (Plaintiff) in Court File No. CV-20-201
Aryeh Samuel, for Jennifer Kehoe (Plaintiff) in Court File No. CV-20-211
Andrew Franklin, for Jennifer Kehoe (Defendant) in Court File Nos. CV-20-201 & CV-20-211
Genevieve Madill, for Elizabeth Lake (Defendant) in Court File Nos. CV-20-201 & CV-20-211
HEARD: April 15, 2026, at Kingston
Decision on motion for directions re: trial scheduling
1This litigation arises from a motor vehicle collision that occurred on July 27, 2018. There were two vehicles involved in the collision: a vehicle driven by Jennifer Kehoe and a vehicle driven by Elizabeth Lake. Billy-Jo Hollywood was a passenger in the Kehoe vehicle.
2Hollywood initiated an action against both Kehoe and Lake (CV-20-201 – the “Hollywood Action”).
3Kehoe initiated three separate actions (CV-20-211, CV-20-306, and CV-20-365) against Lake and several highway contractors. After several case management conferences, the actions against the contractors were discontinued. The sole Kehoe action remaining is being pursued against Lake (CV-20-211 – the “Kehoe Action”).
4The trial record in the Hollywood Action was served in May of 2025. As per local practice, it was placed on the civil trial management court (“CTMC”) list thereafter. The parties involved in the Hollywood Action attended at CTMC before me on October 31, 2025 to set dates for a pre-trial and trial. I declined to set dates for two reasons. Firstly, experts had not yet been retained in the Hollywood Action, meaning that it would be impossible to predict the length of trial when the number of witnesses was unclear. Secondly, I expressed concern that the Kehoe Action (that had not yet been set down for trial) shared common issues of fact and law with the Hollywood Action and should perhaps proceed at the same time.
5Over the course of several joint case management conferences, the issues were streamlined. Both actions will be more or less caught up with one another by the end of 2026.
6The remaining logistical issue is how these actions should be scheduled for trial. Due to differing views, it was agreed that this motion would be brought by Hollywood to obtain directions from the court with respect to the trial schedule.
Trial Scheduling Options
7Jury notices were served by the defendants in both actions. There is no order consolidating the actions or requiring that they are to be heard at the same time / immediately following the other.
8In this jurisdiction (Kingston), civil trials that are two weeks or less can be placed on a regular monthly running list by the local trial coordinator. Trials scheduled for longer than two weeks are scheduled for projected starting dates that reflect the availability of judicial resources. Trial dates and pre-trial dates are typically allocated at a CTMC.
9The following options for trial scheduling are available:
i. The actions could be heard at the same time on issues of liability and damages – approximate total trial duration is 6 weeks.
ii. There could be two separate jury trials – approximate trial duration is 3 weeks per trial.
iii. Issues of liability and damages could be tried separately. Both actions could proceed to a jury trial (or non-jury trial if agreed) at the same time on the issue of liability only – approximate duration is 1-2 days on the issue of liability. Thereafter, the issue of damages would proceed to trial separately with juries – approximate trial duration is likely 12 days (less than 3 weeks) per damages trial.
Positions of the Parties
10Hollywood wants to proceed to trial as quickly as possible and is open to have entirely separate trials on all issues, or to proceed to trial jointly on the issue of liability (with or without a jury) with separate trials to follow on the issue of damages.
11Kehoe (as plaintiff) wants to proceed to trial jointly with Hollywood on all issues.
12Kehoe (as defendant) takes the position that the actions should be heard jointly on the issue of liability followed by two separate trials on damages.
13Lake is content for the actions to be tried together on all issues or tried together on the issue of liability (with or without a jury) followed by two separate trials on damages.
Applicable Rules and Legal Principles
14To the extent possible, multiplicity of proceedings shall be avoided: Courts of Justice Act, R.S.O. 1990, c. C.43 at s. 138 (“CJA”).
15Rule 6.01(1) provides that where two or more proceeding are pending in the court that have a question of law or fact in common, the relief claimed arises from the same occurrence, or any other reason, the court may order that the proceeding be consolidated or heard at the same time or immediately after the other: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [“Rules”]. In making such an order, Rule 6.01(2) states “the court may give such directions as are just to avoid unnecessary costs or delay”.
16The Rules were recently amended as they relate to bifurcation. Effective July 1, 2024, Rule 6.1.01 now provides:
(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.
17I am also mindful of Rule 1.04, which provides that the Rules should be construed liberally to secure “the just, most expeditious and least expensive determination of every civil proceeding on its merits” and that “the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding”.
Analysis
18The Rules provide mechanisms to order separate actions to proceed to trial at the same time and to have separate issues within a single action proceed to trial separately. Both issues arise here. None of the caselaw relied upon by the parties on this motion involves a fact scenario on point.
19With respect to liability, there is no allegation that Hollywood bears any responsibility for the collision. There is no contributory negligence alleged on the part of Hollywood, who was merely a passenger in the Kehoe vehicle. In both actions the liability fight is between Kehoe and Lake. The liability issues are therefore identical in both actions.
20If the two actions proceeded to trial entirely separately, there is a real risk of inconsistent results. For this reason, I find that it is appropriate for both actions to proceed to trial, at least on the issue of liability, at the same time.
21The key area in dispute is whether both actions should proceed entirely at the same time or whether separate trials should be ordered on the issue of damages.
22The rules relating to bifurcation have evolved. Up until 2008, courts relied on their inherent jurisdiction to bifurcate appropriate civil cases.
23In 2008, the original Rule 6.1.01 was enacted (it came into force in 2010). It provided that a court had discretion to order bifurcation of issues but only with consent of the parties. The Court of Appeal for Ontario, in the case of Duggan v. Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, confirmed that this original version of the Rule applied to both jury and non-jury trials.
24The 2024 amendment to Rule 6.1.01 expands the court’s discretion to order bifurcation of issues in the absence of consent of all parties. When doing so, a court must consider the enumerated factors set out in Rule 6.1.01(2). Those factors are considered in relation to this case below.
(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
25If issues of liability and damages are severed, the outcome of the liability trial could significantly reduce trial time if Lake escapes liability completely. There would be no damages claim to pursue against Lake if there is no liability. The Kehoe Action would be dismissed entirely, and the Hollywood Action would continue only against Kehoe. There would be one, short, liability trial, followed by one trial on damages in the Hollywood Action.
26If Lake is found to be partially or entirely responsible for the collision, both damages claims will still need to be adjudicated. However, even in this scenario there would be a substantial savings in legal costs if issues of damages were litigated in separate trials. Specifically, there would be no need for counsel for Hollywood to be present through the Kehoe damages portion of a combined lengthy trial or vice versa (with respect to counsel for Kehoe as plaintiff).
27The parties agree that the notion that counsel could simply excuse themselves for the other plaintiff’s damages portion of a joint, single trial is not reasonable.
(b) whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact
28The issues of liability and damages are clearly severable.
29While both actions have the issue of liability in common and there would be a serious risk of inconsistent findings of fact if the issue was adjudicated in different trials, the opposite is true with respect to the damages claims of each plaintiff. There are no witnesses in common with respect to damages.
30Counsel for Kehoe (as plaintiff) takes the position that the trier of fact responsible for assessing damages should receive information regarding liability to understand the nature of the collision and provide context for the damages claim. In my view, there is nothing that prevents the triers of fact in the damages trials from hearing details about the motor vehicle accident without undue repetition in evidence.
(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
31There are jury notices in both actions. There is no suggestion that the same jury should preside over the liability trial and two, separate damages trials. The bifurcation of issues of liability and damages would therefore result in the issues being decided by up to three separate juries.
32Kehoe (as plaintiff) is the only party that objects to bifurcation. The objection stems from the submission that a single trier of fact should hear all issues.
33Kehoe (as plaintiff) relies heavily on the case of LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040 that was released shortly after the amendment to Rule 6.1.01. LaPointe was a personal injury case in which the plaintiff alleged to have sustained injuries in a school-run softball tournament. Liability and damages were live issues. The defendant brought a motion to bifurcate issues of liability and damages. It was agreed that a trial dealing with both issues would take five weeks. The liability portion was estimated to take 5 days.
34In LaPointe, Healey J. ultimately dismissed the motion to bifurcate the issues of damages and liability. Particular attention was paid to the existence of a valid jury notice and an apparent conflict between the recent amendment to the Rules, which permits bifurcation of issues in jury trials without consent of all parties, and s. 108(1) of the CJA which states that “a party may require that the issues of fact be tried, or the damage is assessed, or both, by a jury” [emphasis added]. Healey J. referred to the Court of Appeal’s decision of Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126, where Blair J.A. interpreted s. 108(1) of the CJA as requiring issues of fact and assessment of damages to be heard by the same jury.
35Kovach pre-dates any codified civil rule permitting bifurcation. Further, it does not conclude that bifurcation is impossible in civil jury trials, but rather that it should be limited to situations where parties consent and explicitly waive their substantive right to proceed to a trial by jury.
36It is very relevant that in this case that the jury notices in each of the two subject actions were served by the defendants. These same defendants consent to the bifurcation of the issues of liability and damages and therefore waive their right to the issues being tried by the same jury.
(d) the impact of ordering a separate hearing at the applicable stage in the proceeding
37Unlike LaPointe, where the bifurcation motion was heard just months before trial, these actions have not yet been placed on the trial list.
(e) any other relevant matter.
38A relevant consideration is the practical likelihood of having a judge available to hear a single, joint, lengthy six-week civil jury trial.
39The challenges associated with Ontario’s civil justice system are well-documented. Efforts are being made to streamline civil proceedings, but the current reality is that the civil justice system is inadequately resourced. Even though the East Region is at, or close to, full complement, there are simply not enough judges to service all business lines of the court effectively.
40The right to proceed to a criminal trial in a timely fashion is protected by the Canadian Charter of Rights and Freedoms. While there is no such enshrined right in a family proceeding, the importance of issues that arise in many family proceedings, particularly child protection, have an undeniable urgency. At least in the East Region, on a weekly basis, it is the civil trials and long civil applications and motions that are being adjourned due to lack of judicial resources and the pressure to service criminal and family matters.
41I have considered that in this climate, in this jurisdiction, the practical reality is that taking a judge out of circulation to preside on a single, joint six-week civil jury trial is met with major challenges. Separate, shorter trials can be more readily accommodated. Shorter trials can be offered sooner, with less of an impact on the Region as a whole.
Conclusion
42To avoid the real possibility of inconsistent results, I direct that the issue of liability be heard in one common trial.
43Having considered all of the factors set out in Rule 6.1.01(2), and the overall objective of the Rules, I direct the issue of damages to proceed to trial separately.
44To be clear, following the joint liability trial, there will be a separate damages trial in the Hollywood Action and, depending on the outcome of the liability trial, a separate damages trial in the Kehoe Action.
45With respect to the jury notices, at the hearing there was discussion about whether the issue of liability could proceed by way of a judge alone trial. Many of the parties agreed with this suggestion, but others had not yet received client instructions. Given the presence of valid jury notices, at this time, the joint liability trial will be scheduled as a jury trial; however, on consent of all parties it may be converted to a judge alone trial while maintaining the ability to proceed to trials with a jury on the issue of damages.
Costs
46As agreed to by the parties, there are no costs ordered with respect to this motion.
Muszynski J.
Date: June 29, 2026