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Kovach v. Linn, 2010 ONCA 126 (Rule 6.1.01 – separate hearings)

Judgment Released: February 18, 2010  Link to Judgment

The Court of Appeal confirmed that, at least prior to the introduction of the new Rules, the Superior Court lacked jurisdiction to bifurcate the trial of liability and damages issues where there is a valid jury notice in place and the parties do not consent.  In analyzing the question, the Court referred to new Rule 6.1.01, which states that “[w]ith 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.”  While new Rule 6.1.01 did not apply to the case at bar, the Court noted that the new Rule “is the first time a rule speaking to bifurcation has been promulgated.  It signals that, in the opinion of the Rules Committee at least, the bifurcation of a trial, jury or non-jury, is not generally a good idea unless the parties consent…. This new rule may well permit the bifurcation of issues of fact or of mixed fact and law even where a jury notice has been filed, where the parties consent, thus surmounting the jurisdictional impediments previously in place.”

This is the first Court of Appeal judgment summarized on this blog.

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Kovach v. Linn, 2010 ONCA 126 (Rule 6.1.01 – separate hearings)

Wm. Whiteley Ltd. v. Gauthier, 2010 ONSC 396 (Rule 6.1 – separate hearings)

Judgment Released:  January 15, 2010   Link to Judgment

The new Rule 6.1.01, relating to bifurcation of a hearing, applies to cases commenced prior to January 1, 2010.

Rule 6.1.01 requires the consent of the parties and the approval of a judge. The Court noted that the Rules Committee rejected the recommendation in the Osborne Report that bifurcation be available either on motion by the parties or on the court’s own initiative. The Court concluded that to order bifurcation the parties must consent and the court must approve.  As the plaintiffs did not consent to bifurcation, the motion was dismissed. The Court also noted that, even if the plaintiffs had consented, the Court would not have ordered bifurcation in the circumstances.

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Wm. Whiteley Ltd. v. Gauthier, 2010 ONSC 396 (Rule 6.1 – separate hearings)