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Civil Litigation - Separate Hearings

. Duggan v. Durham Region Non-Profit Housing Corporation

In Duggan v. Durham Region Non-Profit Housing Corporation (Ont CA, 2020) the Court of Appeal considered the 'separate hearing' authority of R6.1.01:
Wording of the Rule

[20] The first step is to examine the words of r. 6.1.01 itself, found under the heading: Separate Hearings. I restate the text of the rule for ease of reference:
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.
[21] The majority decision under appeal finds that the rule should be interpreted to differentiate between jury and non-jury cases. However, nothing in the wording of the rule suggests any such distinction. To the contrary, the rule applies to a “proceeding”, defined in r. 1.03(1) to mean an action or an application. A jury notice for the trial of factual issues can be served in an action (Rule 47). Rule 6.1.01 does not differentiate between an action to be tried by a judge alone or by a judge and jury; on its face, it applies to all proceedings.

Purpose and Context of the Rule

[22] The state of the law before the rule was enacted is an important contextual factor for interpreting the rule, the intent of the Civil Rules Committee (“CRC”) and of the legislature. Blair J.A. explained the court’s power to bifurcate before the enactment of the rule, together with the history and rationale for the interpretation of the court’s inherent jurisdiction in Kovach (Litigation Guardian of) v. Kovach, 2010 ONCA 126, 100 O.R. (3d) 608, leave to appeal refused, [2010] S.C.C.A. No. 165.

[23] Before r. 6.1.01 was enacted, neither the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), nor the Rules expressly conferred the power to bifurcate a civil trial. Nevertheless, as Morden J.A. explained in Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills, 1986 CanLII 2591 (ON CA), 55 O.R. (2d) 56 (C.A.), at p. 5, the court had the inherent jurisdiction to exercise its discretion to bifurcate a non-jury trial, including ordering separate hearings to determine liability and damages. He described the power as “narrowly circumscribed”. The power to bifurcate had to be exercised with caution and in the interests of justice: Elcano, at p. 6.

[24] However, it was accepted that the inherent jurisdiction to bifurcate did not extend or would not be exercised in the case of a trial where a jury notice had been served, except on the consent of the parties. Courts reasoned that bifurcating a jury trial without consent would conflict with a litigant’s statutory right to have issues of fact or of mixed fact and law decided by a jury: CJA, s.108(1); Kovach, at paras. 24-28.

[25] Like the dissenting judge below, I do not read the jurisprudence prior to the enactment of r. 6.1.01 as preventing a court from bifurcating a jury trial where the parties consent. In Kovach (Litigation Guardian of) v. Kovach, (2009) 2009 CanLII 722 (ON SCDC), 95 O.R. (3d) 34 (Div. Ct.), the Divisional Court considered whether courts could bifurcate jury trials with consent. The Divisional Court concluded that courts had this power, but warned against granting this request lightly. At para 45, it held that: “We are not prepared to conclude that under no circumstances may a jury trial be bifurcated. If all parties to the action consent, the judge will then be required to determine whether it is appropriate.”

[26] On the appeal, Blair J.A. reached a similar conclusion. Near the end of his reasons, at para. 42, he concluded that: “The practice in Ontario has long been understood to preclude the bifurcation of trials where a jury notice has been served, in the absence of consent.” [Emphasis added].

[27] These conclusions are consistent with the reasons for not extending the court’s inherent jurisdiction to bifurcate to jury trials. A litigant’s right to a jury is entrenched in the CJA. The court’s inherent jurisdiction cannot be exercised in a way that undermines this statutory right: Kovach, at para. 25; Baxter Student Housing Ltd. v. College Housing Co-operative Ltd., 1975 CanLII 164 (SCC), [1976] 2 S.C.R. 475, at p. 480.

[28] If a party consents, however, they voluntarily give up their right to have the issues tried by a single jury. Nothing in the CJA suggests that a party cannot waive this right. Indeed, if that Act prevented courts from bifurcating jury trials on consent, that jurisdictional impediment would still exist today, regardless of r. 6.1.01. Section 66(3) of the CJA provides that the CRC cannot make rules that conflict with a statute.

[29] Rule 6.1.01 must be read with this background in mind. The rule was enacted in 2008 and came into force in 2010 as part of a package of changes to the Rules following the delivery of the Honourable Coulter A. Osborne’s report entitled Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007) (“Osborne Report”) which recommended changes to the civil justice system. The Osborne Report recommended that a rule be enacted by the CRC to address the court’s discretion to order bifurcation, and to set out the criteria that could be applied. The report does not suggest that there be different rules for jury and non-jury cases, nor does the discussion, set out below, refer to any distinction:
Pre-Trials and Trial Management:

One trial management issue – bifurcation – requires separate comments. The power to order issues in an action to be split into two or more trials is not expressly conferred by statute or the Rules of Civil Procedure. The power to order bifurcated proceedings appears to exist as part of the inherent jurisdiction of the court. In the leading case, the Court of Appeal held that it is a “basic right” of a litigant to have all issues in dispute resolved in one trial and that bifurcation must therefore be regarded as “a narrowly circumscribed power.” In a later case, Bourne v. Saunby, the Ontario Court (General Division) listed fourteen criteria that the court should consider when evaluating the merits of a motion to sever liability from damages. The catalogue of factors set out in Bourne, though not an exhaustive list, is generally taken into account in determining whether bifurcation should be allowed. A decision of the Divisional Court suggests that a party's inability to fund the litigation is an “extraneous” factor that should not be considered when deciding whether to bifurcate a trial.

While I view bifurcation to be the exception, cost considerations militate in favour of bifurcation in some cases. In commercial litigation, for example, when dealing with damages will expose a party and sometimes all parties to significant costs, it may make sense to separate the issues of liability and damages and deal with liability first. Upon the determination of one issue, parties may be inclined to settle the balance of the issues in dispute. This can result in a significant savings of time, money and judicial resources. It would also be of particular benefit to those litigants who cannot afford a trial of all issues. There is no doubt that bifurcation can delay the final resolution of the entire proceeding and, where issues overlap, evidence and testimony may need to be repeated. Where these concerns apply, a bifurcation order should not be made.

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


The Civil Rules Committee should consider addressing bifurcation in a rule that would permit an order for bifurcation to be made on motion by any party or on the court’s own initiative, after hearing from the parties. Any rule permitting bifurcation could reference some or all of the 14 factors listed in Bourne v. Saunby.
[30] Rule 6.1.01 was enacted following the report. It granted the court discretion to order bifurcation by using the word “may”. The criteria to be applied are not set out explicitly, but the list of factors to consider provided in the Bourne v. Saunby, (1993), 23 C.P.C. (3d) 333 (Ont. Gen. Div.) case remains available to guide a court in making an order that is in the interests of justice.

[31] What the rule adds, and arguably was not contemplated by the Osborne Report recommendation, is the precondition for the exercise of the discretion that bifurcation be on the consent of the parties. Placed in the context of the previous state of the law, the rule’s requirement for the parties’ consent before bifurcation may be ordered confirms the court’s power in jury cases, but it circumscribes the court’s inherent jurisdiction in non-jury cases.


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