Duggan V. Durham Region Non-Profit Housing Corporation, 2020 Onca 788

• Published date: 18 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury
• Law Firm: McLeish Orlando LLP
• Author: Mr Michael Warfe and Endrita Isaj

In personal injury claims, the issue of bifurcation often arises when parties seek to have the issues of liability and damages decided in separate hearings by the trier of fact. Bifurcation in trials is governed by Rule 6.1.01 of the Rules of Civil Procedure, which states:

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.¹

In Duggan v Durham Region Non-Profit Housing Corporation, 2020 ONCA 788, the issue before the Court of Appeal was the proper interpretation of r. 6.1.01. The Court ultimately held that consent by the parties is required in both jury and non-jury trials to bifurcate a trial.

In Duggan v Durham Region Non-Profit Housing Corporation, the infant plaintiff fell from the second-floor balcony of the apartment that his parents were leasing from Durham Region Non-Profit Housing Corporation, suffering significant head injuries. In 2017, the plaintiffs moved for an extension of three years' time to set the matter down for trial in order to obtain further evidence of the infant plaintiff's injuries and prognosis as he aged so as to properly assess damages. The defendant opposed the motion, and in the alternate, asked to bifurcate the issues of liability and damages at trial. The Master granted the request to extend the time for the plaintiffs but also granted the defendant's request to bifurcate the trial to allow a hearing on the issue of liability before the damages hearing.

The plaintiffs appealed the matter to the Superior Court, where the appeal judge upheld the Master's decision. Leave to appeal was granted by the Divisional Court. At the Divisional Court, the majority upheld the decision that the court had inherent jurisdiction to bifurcate non-jury trials without the consent of the parties. The reason for the majority's decision was because the wording in r. 6.1.01 was not clear enough and the word 'may' in the rule was considered permissive language that allowed the court to make a bifurcation order without the consent of the parties. The dissenting judge at the Divisional Court disagreed, finding that the court had no authority to bifurcate the trial without the consent of the parties.

Leave to appeal to the Ontario Court of Appeal was granted to address the sole issue of whether r. 6.1.01 limited the court's ability to bifurcate a trial only on consent in both jury and non-jury trials, or whether the court...