A Divisional Court decision that prevents judges from bifurcating trials without the consent of both parties could end up creating a new roadblock to summary judgment motions in Ontario, Toronto civil and commercial litigator Patrick Summers tells AdvocateDaily.com.
In Bondy-Rafael v. Potrebic, 2015 ONSC 3655 (CanLII), the majority of the court’s three-judge panel ruled that Rule 6.1.01 of Ontario’s Rules of Civil Procedure ousted the court’s inherent jurisdiction to order bifurcation of a trial when one or more parties objects.
Summers, a partner with Birenbaum Steinberg Landau Savin & Colraine, says that could have knock-on effect on motions for summary judgment, because Rule 6.1.01 deals with “hearings” which is defined in Rule 1.03 to include “motions.” Rule 20.04, which deals with summary judgments, may or may not modify the effect of the ruling.
“Rule 6.1.01 may restrict a party’s ability to bring a motion for partial summary judgment in a way that most people I think have not considered,” says Summers, who did not act in the matter and makes his comments generally. “The essence seems to be that there is no judicial discretion to get around Rule 6.1.01. If you want to bifurcate you have to get the consent of the other party. Rule 20.04(2) appears consistent with this as well.”
According to Summers, parties to a dispute often move for partial summary judgment on discreet issues such as liability in order to reduce the costs of ultimately dealing with other issues, say damages, at trial. A final decision on liability can encourage settlement on damages or render the damages issue moot.
“It would be a waste of time to spend a week or more, at trial, on the issue of damages, when it ultimately doesn’t affect one or more parties or is a moot issue,” Summers says. “But this decision may well affect a litigant who wants to use summary judgment to decide liability only, but not damages, or a litigant who wishes to get a partial judgment of any kind.”
The action in Bondy-Rafael involves a $28-million claim for damages arising out of a 2004 motor vehicle accident outside of a mall in Windsor, Ont. The trial was originally scheduled for eight weeks starting September 2014, but a late change in circumstances led to a request for new medical assessments, which prompted the defendants to request a bifurcation of the trial, using the originally scheduled trial dates for a hearing on liability, with a damages assessment to follow if necessary.
However, the plaintiffs would not consent to the bifurcation, and the Divisional Court was called on to settle the matter of whether that prevented bifurcation under Rule 6.1.01, which reads: “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.”
Writing the majority opinion, Ontario Superior Court Justice Anne Molloy sided with the plaintiffs in denying bifurcation, finding the consent of all parties was a precondition to a motion judge having any discretion to do so.
“The Rules Committee clearly intended to impose a Rule as to when a judge has the power to exercise a discretion with respect to bifurcation of a trial. That discretion, according to the Rule, only arises where the parties consent. I find this to be a clear and unambiguous direction that ousts the prior inherent jurisdiction of the court,” she wrote in the judgment. “The language is clear and unambiguous. The Rule occupies the field. Making an order for bifurcation without the consent of the parties would conflict with the Rule. On any test, the inherent jurisdiction of the Court is ousted.”
There may be some consolation from the strong dissent on the issue of inherent jurisdiction by Ontario Superior Court Justice David Corbett. Although he agreed that bifurcation was not warranted in this case, Corbett concluded that the inherent jurisdiction of the court to control its process meant judges “can, and should, order separate trials” where it will secure the “just, most expeditious and least expensive determination.”
Corbett expressed concern that Molloy’s strict interpretation could hinder motions for summary judgment, noting that Rule 6.1 was added as part of the same reform that revamped Ontario’s summary judgment motion process after a report by Ontario’s former Associate Chief Justice Coulter Osborne.
“It was part of a suite of amendments following on consideration of the Osborne Report. Rule 6.1 fits with the spirit and context of those amendments if it is seen as a modest expansion of the court’s inherent jurisdiction to order separate trials. With respect, it does not fit with this spirit and context if it is read as eliminating the court’s existing inherent jurisdiction to order separate trials,” Osborne wrote.Share