Wheelans v Kuss

Bifurcation, Jury Trials, and Timing: Wheelans v Kuss, 2024 ONSC 6728

Written by: Lindsay Charles and articling student, Kathleen Hunter

 

Bifurcation and the Evolution of Rule 6.1

Bifurcation is a procedural tool used to sever a trial into two hearings. It is most commonly used to split the liability and damages portion of a trial. This process has the potential, when exercised appropriately, to reduce costs, facilitate settlements, and streamline the litigation process.

This process is outlined in Rule 6.1 in the Rules of Civil Procedure, O. Reg. 575/07, s. 6 (1) :

Separate Hearings

6.1.01 (1) 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,

  • on a party’s motion, with or without the consent of the other parties; or
  • at a conference under Rule 50, with the consent of the parties. O. Reg. 175/24, s. 1.

(2) In determining whether to order a separate hearing, the court shall consider,

  • 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.

Prior to 2010, the Court had the inherent jurisdiction to bifurcate a non-jury trial, however, where a jury notice had been served, absent of consent, bifurcation was prevented.

In 2010, Rule 6.1.01 was enacted, setting out that, “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.” As a result of the 2010 Rule, the Courts were granted statutory power to bifurcate trials, however, the Court couldn’t order bifurcation in either a jury trial or a non-jury trial without the parties’ consent.

Subsequently, Rule 6.1.01 was amended on July 1, 2024. Under the amended Rule, the Court may order a separate hearing with or without the consent of the other parties. There is nothing in the wording of the rule that suggests that it’s limited to non-jury trials.

It can be speculated, based on the timing of the amendment in July 2024, which followed the Courts’ recognition of increasing backlog within the civil justice system following the COVID-19 pandemic, that the purpose of the amendment was to shorten trials and encourage settlements. However, bifurcation does not always lead to a more efficient and expedited process, and this was the issue that Justice Ranjan K had to grapple with in Wheelans v Kuss, 2024 ONSC 6728.

 

Background

This case arose from a multi vehicle collision that occurred in 2016, in which the plaintiff Ronald Wheelans suffered serious injuries. An action was started by Ronald and his spouse, the plaintiff Sandra Wheelans, in November of 2017 and pleadings closed in October 2018. Ronald was subsequently injured in another collision in November 2018 and in May 2022, the Court ordered that the actions be heard at the same time or one immediately after the other.

The actions were placed on the January 2025 trial sitting, 9 years after the initial collision.

In August of 2024, two of the defendants asked the parties to consent to separate hearings on the issues of liability and damages. The plaintiff refused because of “inordinate delay”.

The pre-trial conferences were held on October 8, 2024, and it was estimated that the duration of trial would be 25 days. The parties agreed that the trial of the liability issues would be three to four days. While the pre-trial conference report filed by the parties’ stated that they expected a “Bifurcation motion”, there was nothing in the pre-trial conference judge’s endorsement that demonstrated that this issue was discussed at the conference, at least in any substantial manner.

The companion action settled on October 29, 2024.

In mid-November, the defendants requested an urgent hearing of the motion for an order for separate hearings. They sought to bifurcate the liability and damages portions of the trial.

 

Decision

The defendants argued that having separate hearings would result in a much shorter trial which would save time, money, and judicial resources. The hearing on liability would be less than a week.

Conversely, it was the position of the plaintiffs that bifurcation would, in fact, increase their costs and contribute to delay in resolving the matter. They estimated that the hearing on damages would not be held until January 2027.

The Court went through the elements set out in Rule 6.1.01(2), to arrive at a determination.

The Court noted that separate hearings do not guarantee a shortening of the process, for example, if the defendants were found liable, there would still need to be a damages hearing. This hearing would not be scheduled during the January 2025 sittings, but rather would likely not be heard until January 2027. Additionally, separating the hearings would require some duplication in prep work and would require another jury to be picked – this also had the potential to contribute to delay. Finally, there was also the risk of an appeal, following a determination on liability, which had the potential to further delay the resolution of the proceedings. If an appeal was successful, there could be a second liability hearing, but only after the damages hearing and the appeal. Overall, the Court held that separate hearings may shorten the proceedings and save costs if the defendants were successful on the issue of liability and there was no appeal. In all other circumstances, separate hearings would likely lengthen the proceeding and increase costs.

The Court also considered whether separate hearings would risk repeating evidence or risk inconsistent findings of fact. While the Court agreed with the defendants that liability and damages could be cleanly separated, the Court rejected the argument from the defendants that it’s “possible, if not likely” that the plaintiffs couldn’t prove liability. The Court held that if the defendants were so sure there was no genuine issue requiring a trial on the evidence, then they should have moved for summary judgement. The Court was clear that on this motion the Court could not weigh evidence and make findings of fact in relation to the merits of the action. The Court also rejected the plaintiff’s submission that the liability evidence was needed for an assessment of damages. The Court commented that the plaintiff could always introduce the evidence they sought at the damages hearing.

The Court considered whether ordering separate hearings would unduly prejudice any party. The Court noted that the defendants conceded that they served the jury notice and where now also bringing this motion, as such they were prepared to risk any prejudice resulting from separate hearings. However, in further considering the risk of prejudice to the plaintiffs, the Court accepted that if there were to be separate hearings, it was likely that the damages hearing would not be heard until January of 2027. The Court held that this would delay the proceedings at least two years and that real and substantial prejudice arises “simply by reason of delay”.

In considering the timing the defendants’ request, the Court noted that there was no evidence the defendants turned their mind to this issue prior to August 2024. They could have sought the consent of the plaintiffs’ months or years before, under the old rule. Further, the defendants had notice of the amendment to the rule and could have scheduled their motion to be heard the same day, like in the case of LaPointe v Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040 (which was noted by the Court to be the only other case applying the amended rule).

Additionally, the Court did not accept that the companion action settling was a factor that triggered the defendants’ request, as there was no compelling reason provided for this submission.

Finally, the issue of bifurcation was not a live issue at the pre-trial conference and the defendants did not ask for a motion date. Rather, the defendants confirmed they were ready for trial, without bifurcating the proceedings.

The Court noted that when an action is placed on the trial list, all parties are deemed to be ready for trial. In this case, by participating in the pre-trial conference and confirming that the trial would be 25 days long on both the issues of liability and damages, the defendants told the Court they were ready. They cannot now, with only 22 business days between the motion and the start of the trial, renege on this representation. The Court reasoned that by now, both parties should be well underway in their preparation for the damages hearing. To delay, would result in the parties throwing away some of their preparation costs.

Considering all these factors, Justice Ranjan K. Agarwal declined to order a separate hearing on liability and dismissed the defendants’ motion.

 

Take-Aways

This decision reiterates the importance of making requests for bifurcation of a proceeding early and serves as a useful decision in terms of the approach taken to an analysis under Rule 6.1.01(2). With the civil justice system in crisis in terms of backlog, it’s important to note that bifurcation is not always an efficient cost-reducing mechanism. In the words of Justice Ranjan K,

 Even though rule 6.1 can be used to help deliver timely justice, it can also be misused to create further delay.

 

Lindsay Charles

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