Introduction
Bifurcation is a rarely utilized but effective procedural tool commonly used to sever a trial into two separate phases: liability and damages. It has increasingly become an effective tool in complex litigation on jury and non-jury trials, but its nuances present important considerations before bifurcation is pursued. This process can streamline proceedings, reduce costs, and facilitate settlements. However, it also raises strategic considerations for both plaintiffs and defendants. This article explores the nuances of bifurcated trials, their benefits and drawbacks, and the strategic implications for litigants.
Bifurcation and Procedural Requirements
Bifurcation of trials is a process that segregates two discrete issues, such as liability and damages, into separate trials held at different times. This approach offers the unique advantage of allowing each issue to be determined independently, thereby potentially reducing costs where addressing one issue fully resolves the action. Notably, under the Rules, the Court has the power to sever any divisible issue at trial, but this paper will focus on severing liability and damages.
Prior to the modification of the Rules of Civil Procedure on January 10, 2010, Courts did not have a statutory basis to bifurcate trials.[1] Instead, this power was derived from the Court’s inherent jurisdiction,[2] which was “narrowly circumscribed”[3] and limited to non-jury trials unless there was consent.[4] This limitation was based on the principle that “once a trier of fact is seized of an action, it remains seized of it until judgment is pronounced.”[5] Since a bifurcated jury trial would necessarily result in two juries, any bifurcation in a jury trial would impermissibly diverge from this principle. The only time such a divergence was permitted would be with the parties' consent.
On January 1, 2010, the Rules were amended to include Rule 6.1.01, which states:
6.1.01 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.
This made two changes. First, the Court’s inherent power to bifurcate trials was enshrined in the Rules, providing a statutory basis for these determinations. Second, it solidified the requirement of consent for the parties prior to bifurcation. As recently confirmed by the Ontario Court of Appeal, absent consent of the parties, Courts do not have an inherent jurisdiction to bifurcate an action.[6] As a result, there is no way for one party to move to bifurcate an action when another party opposes this, no matter how compelling that party’s reasons are.
Rule 6.1.01 was established following Honourable Coulter A. Osborne's report entitled Civil Justice Reform Project: Summary of Findings & Recommendations. This report suggested that some or all of the 14 principles discussed in Bourne v. Saunby should also be introduced to guide when bifurcation should be made.[7] While the amendment to the Rules did not include these principles, the Ontario Court of Appeal reaffirmed the importance of these 14 principles in Duggan v Durham Region Non-Profit Housing Corporation.[8] The 14 principles are:
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