As of July 1, 2024, Ontario’s Rules of Civil Procedure were amended with a new rule governing bifurcation of proceedings. This new rule was recently discussed by Krystyne Rusek and Jennifer Lake of Speigel Nichols Fox LLP in their presentation at the OBA program, Essential Updates on Court Processes for Estate Litigators.
The new Rule 6.1.01(1) has potential implications for estate litigators, particularly in cases involving complex issues of liability and damages, which may be more efficiently determined in separate proceedings.
Key Changes in Rule 6.1.01(1)
Under the new rule, courts may order separate hearings on different issues within a case, even without the consent of all parties. The new rule reads:
6.1.01 (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. O. Reg. 175/24, s. 1.
(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. O. Reg. 175/24, s. 1.
The former rule required consent, limiting the court’s ability to bifurcate without agreement. Now, a party can bring a motion for bifurcation, and the court must consider several factors, including the potential for shortening the proceeding, saving costs, and avoiding prejudice to the parties.
Example in Dependant Support Applications
During their presentation, Krystyne Rusek and Jennifer Lake identified several relevant examples that may apply to the context of estate litigation. For example, consider a dependant support application where bifurcation could increase the efficiency of the proceeding by determining separate issues like entitlement and quantum of support. In this case, the court might separate the determination of whether the applicant is entitled to support from the calculation of the quantum amount of support. This separation could simplify the process, as determining entitlement first might resolve the entire matter or lead to settlement discussions on quantum without further litigation.
Recent Application
The recent decision in LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040) offers insight into the court’s approach to bifurcation. The court refused to bifurcate liability and damages, emphasizing the need for clear separation of issues without risking overlapping evidence or inconsistent findings. The court found that issues should not be separated unless they can truly be compartmentalized. This decision highlights that despite the rule change, bifurcation may not always be appropriate, especially in in jury trials.
While bifurcation is now more accessible, success depends upon meeting the threshold for severability, such as clear issue delineation and cost-saving benefits.
For more information on this topic, I recommend accessing the OBA program Essential Updates on Court Processes for Estate Litigators. Thanks to Krystyne Rusek and Jennifer Lake for their insight into this important topic!
Thanks for reading,