A New Approach To Bifurcation?

Mr. Justice Robert Smith of the Superior Court released a decision last week that might signal a new approach to the bifurcation of trials. In Wang v. Byford-Harvey et al., His Honour ordered the bifurcation of a personal injury trial, such that the liability issue will be tried first and damages at a later date. In reaching his conclusion, Justice Smith laid fairly heavy emphasis on the potential saving of judicial resources and the resulting benefit to the public.

(Full disclosure: I represent one of the defendants in the action, but this motion was argued principally between the plaintiffs on one side and the co-defendants on the other.)

I don’t know if my experience is unique, but I went through most of my career without ever having a trial bifurcated. Suddenly, within the last couple of years, bifurcation orders have been made in several actions in which I have been involved and bifurcation has been proposed in a number of others.

This action arose out of a motor vehicle accident in which the main plaintiff had been rendered a paraplegic. The trial had been scheduled for January, 2013 and was expected to last six weeks. Some of the defendants, who argued that the plaintiffs’ case against them was tenuous, sought an order that the issue of liability be tried first. The plaintiffs opposed the motion.

As a result of Justice Smith’s order, liability will be tried this fall with the damages trial, if one is required, to be held in January, 2013.

There is actually a Rule that came into effect in 2008, that specifically provides for bifurcation, but only on consent of the parties. Rule 6.02 provides as follows:

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.

Justice Smith’s reasons make no reference to this rule (the order was certainly not on consent) and it was not argued on behalf of the plaintiffs, that Rule 6.02 had “occupied the field” and that the court has no power to make a bifurcation order in the absence of consent. 

The motion was brought, instead, under R. 5.05:

Where it appears that the joinder of multiple claims or parties in the same proceeding may unduly complicate or delay the hearing or cause undue prejudice to a party, the court may,

(a) order separate hearings;

(b) require one or more of the claims to be asserted, if at all, in another proceeding;

(c) order that a party be compensated by costs for having to attend, or be relieved from attending, any part of a hearing in which the party has no interest;

(d) stay the proceeding against a defendant or respondent, pending the hearing of the proceeding against another defendant or respondent, on condition that the party against whom the proceeding is stayed is bound by the findings made at the hearing against the other defendant or respondent; or

(e) make such other order as is just.

Justice Smith cited Bourne v. Saunby, (1993) 23 C.P.C. (3d) 333, O.J. No. 2606 for fourteen factors to be considered on a bifurcation motion. He focused particularly on factors (ix), (x) and (xi) from the Bourne case. Those factors are:

ix) Is there a clear advantage to all parties to have liability tried first?

x) Will there be a substantial saving of costs?

xi) Is it certain that the splitting of the case will save time, or will it lead to unnecessary delay?

He said: “I find that factors ix), x), and xi), the court’s interest in an increased role in trial management, and the public interest in the administration of justice to ensure efficient use of court time are the major factors that will be given the greatest weight in my decision. If time and costs would be saved, and more efficient use of judicial resources could be achieved by having separate trials, this would be beneficial to all parties and it would be a strong factor favouring bifurcation.”

While Justice Smith was certainly not the first to factor “judicial resources” into the mix on a bifurcation motion, other judges have generally been more hesitant to place much emphasis on it. For example, in Carreiro v. Flynn, 2004 CanLII 4345 (ON SC), Justice Sutherland said:

While generally speaking I believe that in these bifurcation matters more emphasis should be placed on the saving of judicial resources, I would not want the court to solve some of its scheduling, workload and backlog problems on the backs of seriously injured minor plaintiffs. In such cases the bar, which is always high, is in my view even higher.

I am by no means suggesting that Justice Smith was guilty of sacrificing the interests of the litigants to those of the administration of justice. To the contrary, he carefully considered the impact that bifurcation would have on the parties. However, he did repeatedly emphasize that the efficient use of judicial resources was a big factor in his decision.

And this corresponds with what I hear from judges and masters who themselves suggest bifurcation; they are concerned about setting aside time for long trials that might prove unnecessary if one issue is decided in a particular way. It seems that future bifurcation motions should include “judicial resources” as an important factor to be considered by the court.

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