Bifurcation: Another Tool in the Toolbelt
By Zoe Panday
Often in our practice, we are seeking to manage complex proceedings where multiple claims are issued relating to the same loss. Actions can move at different paces and face different procedural hurdles. Both counsel and the court are tasked with addressing these issues with a view to preventing inconsistent results and reducing costs and court time. The court has a variety of tools at its disposal to address complex matters. Bifurcation is the tool that Justice Muszynski used in the recent decision in Hollywood v. Kehoe, 2026 ONSC 3808.
Procedural Background
The actions in question arose from a motor vehicle accident between two vehicles. The first action was commenced by the plaintiff, Hollywood, who was a passenger in the Kehoe vehicle, against Kehoe and Lake, the drivers of the two vehicles involved. Kehoe issued three separate actions against Lake, as well as a number of highway contractors (against whom the actions were subsequently discontinued), but only one of the three Kehoe actions continued to be pursued. The actions all had the same liability issues. The defendants in both actions had delivered jury notices.
At the time of the motion, the two remaining actions were at different stages of litigation, which presented a barrier to trial scheduling. The parties were at odds on how to proceed, and Hollywood brought the motion for directions to resolve these issues.
The Rules
The Courts of Justice Act (“CJA”) s. 138 provides that, to the extent possible, multiplicity of proceedings shall be avoided.
While the court considered a number of options, including scheduling a six-week joint trial and two separate three week trials, it ultimately ordered separate trials on liability and damages by applying the statutory bifurcation test under the amended Rule 6.1.01.
Justice Muszynski applied the recently amended Rule 6.1.01 for bifurcation, which expands the court’s discretion to order bifurcation of trials in the absence of consent of all parties. The Rules set out factors to be considered factors, which are as follows:
(1) 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,
(a) on a party’s motion, with or without the consent of the other parties; or
(b) at a conference under Rule 50, with the consent of the parties.
(2) In determining whether to order a separate hearing, the court shall consider,
(a) whether ordering a separate hearing will dispose of some or all of the issues, shorten or simplify the rest of the proceeding or result in a substantial saving of costs;
(b) whether the issues are clearly severable and can be heard separately without unduly repeating evidence or risking inconsistent findings of fact;
(c) whether ordering a separate hearing would unduly prejudice or advantage a party, including the impact on any counterclaim, crossclaim or third or subsequent party claim or, in cases where a jury notice has been delivered, on a party’s election to have the action heard by a jury;
(d) the impact of ordering a separate hearing at the applicable stage in the proceeding; and
(e) any other relevant matter.
On consideration of these factors, Justice Muszynski concluded that bifurcation would be the best way forward.
Analysis
Justice Muszynski found that severing liability and damages could significantly reduce trial time, if a fault determination is made on liability, and result in a substantial savings in costs. In this case, His Honour found that the issues of liability and damages were clearly severable, as the damages of each plaintiff are distinct and the proposed witnesses on damages did not overlap.
In addressing the issue of the jury notices, Justice Muszynski distinguished this case from LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040, where Healey J. refused to grant bifurcation where a party refused to waive the right to a single jury, relying on Kovach v. Kovach, 2010 ONCA 126. In this case, the defendants consented to bifurcation and waived their right to a single jury.
The other consideration Justice Muszynski noted was the practical reality of limited judicial resources when scheduling a lengthy trial. Separate shorter trials are easier to accommodate and can be offered earlier. His Honour found that bifurcation would promote the interests of efficiency and judicial resource management.
Takeaways
It remains to be seen whether bifurcation can deliver on its promises of providing greater judicial economy and cost and time savings to the parties. There is a potential that this kind of solution merely puts off or re-arranges the burden. However, it is important for counsel to recognize and consider all tools available to them when dealing with complex matters, and bifurcation is a tool in the belt.