In appropriate circumstances, bifurcating the issues of liability and damages is a good thing. It can increase judicial efficiency, promote expeditious dispute resolution, and improve access to justice for plaintiffs and defendants. Rule 6.1.01 of the Rules of Civil Procedure came into force in 2010 as part of the recommendations made in the Osborne Report. Since that time, the availability of bifurcation in non-jury trials absent consent of all parties and the ability for a court to use its inherent jurisdiction to bifurcate has been unclear.
Now, ten years later, the Court of Appeal for Ontario has conclusively settled these issues in Duggan v Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, concluding that absent consent of the parties, an action cannot be bifurcated. Therefore, the inherent jurisdiction that the courts had once possessed to bifurcate an action without the consent of the parties (prior to 2010) is no longer available because of Rule 6.1.01.
Facts and Judicial History
The plaintiff was injured falling from a balcony at the home his family leased from the defendants. The plaintiffs brought a motion to delay setting the action down for trial until the appellant’s injuries stabilized. The defendants opposed that motion, but in the alternative asked the court to bifurcate the liability and damages issues.
In the lower courts, the defendants’ request for bifurcation was granted. The Master, the Superior Court judge, and the Divisional Court panel concluded that the courts retain inherent jurisdiction to bifurcate absent consent in non-jury trials, in light of the pre-existing bifurcation case law and the principles of accessibility, proportionality, timely, and affordable dispute resolution set out in Hryniak v Mauldin, 2014 SCC 7.
Before 2010, bifurcation was available in non-jury trials absent consent of the parties as part of the court’s inherent jurisdiction, and in jury trials only with the consent of the parties. However, Justice Feldman, writing for a unanimous Ontario Court of Appeal, concluded that under a plain reading of Rule 6.1.01 bifurcation requires the consent of all parties in jury and non-jury trials and that Rule ousts the court’s inherent jurisdiction. In her view, “[t]he language of the rule precludes making an order without the consent of the parties” and the rule does not distinguish between jury and non-jury trials. Justice Feldman noted that Rule 6.1.01 contains the “clear and precise” language required to oust the court’s inherent jurisdiction. The language of the Rule is mandatory rather than permissive, and the presence of the word “may” simply provides discretion to refuse a bifurcation request even with the consent of the parties.
Justice Feldman also considered Rule 6.1.01 in light of Hryniak and held that requiring the consent of the parties as a precondition to a bifurcation order pursuant to rule 6.1.01 is not inconsistent with the court’s power to order partial summary judgment. In such cases involving partial summary judgment, the court has decided that one issue does not require a trial, so that there is no bifurcation where two trials are held.
This decision brings much-needed clarity to a body of inconsistent case law, including two conflicting Divisional Court decisions. There is now a bright line rule on when a party may request bifurcation in both jury and non-jury cases, while the court retains residual discretion to refuse bifurcation in appropriate circumstances.
It stands to be determined whether concerns will arise following this decision regarding judicial economy, access to justice, and encouraging legitimate, expeditious dispute resolution while preventing abuse of process. Bifurcation is an important tool for both plaintiffs and defendants where proving or disproving damages will be expensive and liability is not clear or can be dealt with separately. Permitting one side to exercise a veto for bifurcation may have the potential for future abuse. Although Justice Feldman identified many instances where a party might legitimately oppose bifurcation, it is not clear why the courts should not retain a residual discretion to assess the legitimacy of any objections to bifurcation and prevent abuse of process while promoting accessible, just, efficient, and fair resolution of disputes.
It is noteworthy that the Court of Appeal did not comment on Justice McLeod’s comments in Campbell v Campbell, 2017 ONSC 2139 at para. 42, where he commented that he participated in all Civil Rules Committee deliberations concerning the Osborne Report and was “certain it was never the intent of the Rules Committee to ‘occupy the field’ or to restrict the inherent jurisdiction of the court” with respect to bifurcation. In the passage cited by Justice Feldman at para. 29 in Duggan, the Osborne Report concluded that: “[i]n the end, the Court’s discretion in making bifurcation orders should be expanded while recognizing that bifurcation remains the exception, not the rule.” However, it is clear from the Court’s analysis that it focused solely on the words of the Rule in reaching its decision. It will be interesting to see whether the Civil Rules Committee decides to amend the Rule to accord with the law prior to 2010 in the event that the Court of Appeal’s interpretation in Duggan is not what was ultimately intended by the drafters of the Rule.
*Christina and Henry have previously written on the case law surrounding Duggan and the interpretation of Rule 6.1.01: see Trial Bifurcation Under Ontario Rule 6.1.01: The “Culture Shift” Takes Two Steps Back (2019) 49:2 Adv Q 207 and Duggan v Durham Region Non-Profit Housing Corp.: Trial Bifurcation in Non-Jury Trials Gains Momentum (2019) 50:2 Adv Q 227 (both available on Westlaw).