Pre-Trial Procedures - Severance
Infant plaintiff was injured in fall from window of community housing unit . Evidence was that infant plaintiff's injuries could not be fully assessed for at least five years . Defendant moved to separate issues of liability and damages, which was granted . Plaintiffs unsuccessfully appealed on basis that r. 6.1.01 of Rules of Civil Procedure did not permit court to make order for bifurcation in non-jury trial without consent . Judge held that Master had jurisdiction to order bifurcation of non-jury trial because court had inherent jurisdiction in exceptional circumstances . Plaintiffs appealed . Appeal dismissed. Effect of r. 6.1.01 was to enable court flexibility to bifurcate in jury trials in limited exceptional circumstances where interests of justice warranted and where parties consented. In exceptional cases, court should not be restricted from exercising its inherent jurisdiction in non-jury case because one party refused to consent. Rule 6.1.01 was permissive, not mandatory. Rule 6.1.01 did not say that in all cases bifurcation could only be granted on consent of parties. This was one such exceptional case because liability can and should be determined without delay so that elderly witnesses with health issues were able to testify on important issues.
Duggan v. Durham Regions Non-Profit Housing Corp., (2019), 2019 CarswellOnt 8838, 2019 ONSC 3445, Ellies R.S.J., Sachs J., and Thorburn J. (Ont. Div. Ct.); affirmed (2018), 2018 CarswellOnt 5626, 2018 ONSC 1811, J. Wilson J. (Ont. S.C.J.).
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