LaPointe and Wheelans – Barriers to Bifurcation persist despite rule amendments – The Beard Winter Defender
by Lauren Bloom, Partner, Damian Di Biase, Lawyer and Bryn Allan, Student-at-Law
Summary
In the seven months since the Ontario Government amended Rule 6.1 to the Rules of Civil Procedure to allow a court to order bifurcation, the court has yet to make such an order. This blog analyzes the cases of LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040 (“LaPointe”) and Wheelans v. Kuss, 2024 ONSC 6728 (“Wheelans”), being the only cases where the new rule has been interpreted. These cases provide litigants with useful insight into how courts will interpret and apply the new rule; a rule that has the potential at alleviating the significant backlog characterizing today’s court process.
Rule 6.1.01 – The test for bifurcation
Rule 6.1.01(1) states, “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 (a) on a party’s motion, with or without the consent of the other parties, or (b) at a conference under Rule 50, with the consent of the parties”.
Rule 6.1.01(2) stipulates several factors a court will analyze when determining to exercise its discretion under rule 6.1.01(1), including:
- whether ordering a separate hearing will dispose of some or all of the issues, shorten or simplify the rest of the proceeding or result in a substantial saving of costs;
- whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact;
- whether ordering a separate hearing would unduly prejudice or advantage a party, including the impact on any counterclaim, crossclaim or third or subsequent party claim or, in cases where a jury notice has been delivered, on a party’s election to have the action heard by a jury;
- the impact of ordering a separate hearing at the applicable stage in the proceeding; and
- any other relevant matter.
The use of the term “may” in rule 6.1.01(1) illustrates that a court still has the discretion to not grant bifurcation even if all parties consent. Concurrently, rule 6.1.01(2)(e) entails that the existing caselaw pertaining to the additional factors courts may analyze when determining to grant bifurcation are still relevant.
LaPointe and Wheelans – The barriers to bifurcation
The first attempt at bifurcation was denied by Justice Healey in July 2024 in the decision of LaPointe. The second attempt was heard in December 2024 by Justice Agarwal in the decision of Wheelans.
In LaPointe, there was no evidence that the trial would be shortened if the defendant was unsuccessful on liability, nor was there evidence that a liability decision in favour of the plaintiffs would increase the chances of settling damages, as causation would still be a live issue. Experts and witnesses needed for the liability trial would also have to be called at the damages trial, and the jurors would need to be present for all examinations. Having a different jury decide the two issues where there was an overlap in witnesses and evidence, gave rise to the possibility of inconsistent findings. Concurrently, the possibility of appeals from either decision could outweigh any time or costs savings.
Justice Healey also found it difficult to reconcile the new rule with the body of common law that has held jury trials are excluded from bifurcation, particularly due to section 108(1) of the Courts of Justice Act. Without clear intent from the legislature to have the new rule supplement section 108(1), or the common law, Justice Healey found that the delivery of a jury notice militated against bifurcation.
In Wheelans, Justice Agarwal agreed with the Defendant that because there was no overlap between the liability and damages witnesses, the issues could be clearly separated. Concurrently, given that the defendants were the parties who requested a jury trial, their request for the trial to be bifurcated entailed that they would suffer no prejudice if the order was granted. However, Justice Agarwal found that the defendant’s request came too late. Justice Agarwal argued that the defendants could have turned their mind to this issue before the new rule was enacted, or before the companion action settled. The prejudice that would arise from the delay of an already eight year action prompted Justice Agarwal to deny the defendant’s motion as the potential costs savings and efficiencies of separate hearings were outweighed by the delay and risk of increased costs.
Takeaways
The cases of LaPointe and Wheelans evidence the courts hesitancy to bifurcate jury trials. The possibility of inconsistent findings continue to be of great concern, despite the new rule. Concurrently, a paramount concern continues to be the prejudice parties will incur if bifurcation is granted, particularly in delays and increased costs.
As such, these cases suggest bifurcation will be allowed sparingly. Nonetheless, the rule can and should play an important role in managing delays and costs in our civil justice system. Bifurcating the issues of liability and damages can lead to shorter trials and cost savings for both sides, without endangering anyone’s fair trial rights.