Troy Lehman

The defendant, Simcoe Muskoka Catholic District School Board, brought a motion to bifurcate the issues of liability and damages in a personal injury action, seeking to have liability tried first.

The plaintiffs opposed the motion.

The court dismissed the motion, finding that the defendant failed to demonstrate that bifurcation would certainly dispose of issues, shorten proceedings, or result in substantial cost savings.

The court also found that the issues were not clearly severable due to overlap in evidence and witnesses, and that bifurcating a jury trial would unduly prejudice the plaintiffs, given the right to a single jury and the practical difficulties of separate jury trials.

The plaintiffs moved to strike the jury in a motor vehicle collision trial, alleging a breach of the rule in Browne v. Dunn by the defence.

The defence cross-examined the plaintiffs' medical experts on an alleged inconsistent symptom (fluid leaking from the ear) reported by the plaintiff to the Mayo Clinic, without having put this specific inconsistency to the plaintiff during his cross-examination.

The court found a serious breach of the Browne v. Dunn rule, which impaired trial fairness and the jury's ability to assess credibility.

The court determined that neither a correcting instruction nor recalling the plaintiff would remedy the damage, and therefore granted the motion to strike the jury.