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Personal Injury

When bifurcation makes sense, and why

Despite a recent amendment to the Rules of Civil Procedure directing the court to expressly provide for bifurcation, the availability of separate hearings in motor vehicle cases remains the exception, rather than the norm, says Toronto critical injury lawyer Salvatore Shaw.


Shaw, partner with McLeish Orlando LLP, recently spoke at The Oatley McLeish Lecture Series: Guide to Motor Vehicle Litigation with a paper titled Bifurcation – When, Why and How?


Bifurcation in motor vehicle cases, in the rare instance that it is ordered, typically involves the separation of the determination of liability from the determination of causation and the quantification of damages, Shaw’s paper says.


Prior to Jan. 1, 2010, the power to bifurcate a civil trial was not conferred by any statute or found under the Rules of Civil Procedure, but was based on the court’s inherent jurisdiction to control its own process, writes Shaw. The amendment then came into force, changing the rules so they included a specific provision for separate hearings, which reads: “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.”


Shaw says, "This rule allows the court to order bifurcation of the issues of liability and damages, with the consent of all parties."


“Of note is that there was no specific restriction regarding the application of the rule to jury actions. This is interesting as the case law at that time was decidedly against bifurcation of jury trials. The Court of Appeal has since commented that the new rule may very well permit the bifurcation of issues in a jury case, where the parties consent.”


Shaw says, “The Rules Committee also chose to use the word ‘may’ as opposed to ‘shall’ when drafting the new rule. As a result, the court maintains its discretion to order bifurcation, notwithstanding the consent of all parties. As a result, counsel must continue to apply the various criteria developed by the courts previously, when determining whether a case is appropriate for bifurcation.”


Several elements must be taken into account when considering whether bifurcation is an option, writes Shaw, noting, “Under the common law and the inherent jurisdiction of the court, the availability of a bifurcation order is highly dependent on whether or not there is existing and valid jury notice in the action.”


Jurisdiction and the test for bifurcation (Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills) are the first two items to consider when looking at separate hearings, says Shaw. In the paper, Shaw outlines strategies to examine in such situations.


“Consider at the outset of the claim whether your case is one where bifurcation may be desirable,” he writes. “If so, serious thought should be given as to whether or not a jury notice should be delivered.”


Don’t delay in seeking the bifurcation order, he advises, adding, “In a similar vein, consider the restrictions under Rule 48.04(1) once an action has been set down.”


As one of the most significant barriers to obtaining a bifurcation order remains an existing and valid jury notice, counsel should consider whether it may be appropriate to strike an existing jury notice, he writes.


“When drafting materials for bifurcation, counsel should not base the entire merits of the bifurcation on the savings of time and money,” says Shaw.


The relationship between liability, causation and damages in the case; trial management direction from the trial judge as an alternative to bifurcation; whether the parties can reach an agreement on one or more issues, leaving the remaining issue to be tried; and whether the recently expanded scope of summary judgement motions may allow for a similar result to be obtained are all scenarios that should also be considered.


“Bifurcation of motor vehicle cases remains the exception rather than the norm, notwithstanding the recent addition of Rule 6.1.01,” says Shaw. “While the new rule may ultimately allow for the bifurcation of the jury trials in ‘exceptional’ cases, it is hard to conceive what such a case would look like. Certainly in judge alone trials, bifurcation should continue to be an effective trial management tool for both the parties and the court to consider when trying to obtain the most expeditious and just result.”


To Read More Salvatore Shaw Posts Click Here
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