Bifurcation of Liability and Damages Available in Jury Trials

In Kovach v. Kovach, 2008 CanLII 20331 (ON S.C.), released online today, the Court held that, in rare cases, even a jury trial could be bifurcated into liability and damages.

This is a significant point as many counsel were of the view that a jury trial cannot be so bifurcated.

The Court held:

[21] The Master, in this case, dismissed the defendants' bifurcation motion based on the authorities, including Duffy, holding that the power to split a trial may not be executed, when a jury notice is filed. She did not consider the merits of the defendants' motion. In my view, the learned Master erred in her interpretation of judicial authority and in not considering the merits of the motion. A case management Master has jurisdiction to order bifurcation as part of the case management process which is designed to facilitate early and fair settlements and bring proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding: Rule 77.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. See, Unwin v. Brothers 2005 CanLII 23337 (ON S.C.), (2005), 76 O.R. (3d) 453 (S.C.J.).
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[29] In recent years, the courts have placed greater emphasis on their duty to control the court process to achieve the most just and expeditious determination of dispute, rather than the right of a party to have all issues tried at one time. See, for example: General Refractories, super, at para. 12; Royal Bank of Canada v. Kilmer van Nostrand Co., [1994] O.J. No. 1476 (Gen. Div.) at para. 19; McGraw v. Stoddart, [1995] O.J. No. 1065 (Gen. Div.) at paras 31-32; McKinlay Transport Ltd. v. Motor Transport Industrial Relations Bureau of Ontario (Inc.), [1995] O.J. No. 123 (Gen. Div.); TDL Group Ltd. v. 1060284 Ontario Ltd., [2001] O.J. No. 1035 (S.C.J.) at para. 4; and Morniga v. State Farm Mutual Automobile Insurance Co., [2002] O.J. No. 2094 (S.C.J.) at paras. 18-21.

[30] At the same time, severance orders remain rare and are to be ordered only in exceptional circumstances, because as a general rule, a multiplicity of proceedings is to be avoided. There are, however, those special cases where bifurcation is appropriate in order to bring the proceeding expeditiously to a just determination. See Rule 77.02.

[31] In this case, the liability issue to be tried is not overly complex and turns on a finding as to whether Mackenzie Linn exercised reasonable care in the operation of the Linn motor vehicle. In my view, this issue is completely distinct from the damages issues which are considerably more complex. Despite the plaintiffs' contentions of overlap, in general, a fairly clear demarcation exists between the liability issues and the damages issues in this case. That does not mean, of course, that damages cannot be raised in the liability trial to put matters in context.

James Morton
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