Denial of Leave To Appeal in Linn v. Kovach Confirms Jury Trials May Not Be Split Without Consent of Both Parties
Last week, the SCC did not grant leave to appeal in Linn v. Kovach, 2010 ONCA 126, leaving intact the principle that jury trials may not be split unless both parties consent. The decision is particularly interesting as the amended Ontario Rules of Civil Procedure of January 1, 2010 led to a strong obiter dicta comment.
The action began as a result of a car accident that occurred on Halloween night, 1999. Defendant (appellant) Pauline Kovach reversed her van from a driveway onto a public street and collided with a vehicle driven by Mackenzie Linn. Kovach’s 8-year-old son Andrew suffered a traumatic permanent brain injury, which became the subject of an $11.5 million claim launched by his litigation guardian against Kovach and the Linns. Both parties elected to have the case decided by jury.
The Linns submitted a motion to bifurcate the trial into two separate proceedings; one regarding liability and the other to address damages. The defendants also proposed that both trials be given different juries. In 2007, the motion was dismissed by Master Egan at the Ontario Superior Court of Justice, stating that the court had no jurisdiction to make the order without the consent of both parties, citing Shepley v. Libby McNeil & Libby of Canada Ltd. (1979), 23 O.R. (2d) 354. Shepley stands for the proposition that the court does not have the jurisdiction to split proceedings without the consent of both parties.
In 2008, Chapnik J. set aside Master Egan’s order, determining that Shepley did not apply, and claimed this issue fell under the court’s “inherent jurisdiction to control its own processes.” Chapnik J. found that bifurcation was permissible since the damages issue could potentially be moot, and would be distinct from the concern surrounding liability.
The Divisional Court restored the order of Master Egan in 2009, holding that the law in Ontario is that a jury trial may not be bifurcated if one party objects.
The Ontario Court of Appeal
The Court of Appeal confirmed that the lower court lacked jurisdiction to bifurcate the trial since both of the parties did not consent. Its decision resolved the lower courts’ disagreement over the proper interpretation of Shepley.
In making its decision, the Court of Appeal relied upon Elcano Acceptance Ltd. v. Richmond, Richmond Stambler & Mills (1986), 55. O.R. (2d) 56, (pdf link). In that case, Morden J. stated at p. 59:
It has been held that the power may not be exercised where one of the parties has served a jury notice: Shepley v. Libby McNeil …
The Linns contended that Shepley had been misinterpreted and that the above statement was a non-binding obiter dictum. However, Blair J.A., writing for the majority at the Court of Appeal, disagreed. First, he held that the Morden J.’s statement in Elcano was not obiter dictum because the statement was essential to his reasoning process and therefore binding.
Second, he held that Shepley stands for the proposition that both parties must consent in order for a trial to be bifurcated. The appellants had argued that Shepley stood for the proposition that bifurcation would be inappropriate if the result would deprive a party of the right to have all issues determined by a jury. The Court of Appeal disagreed, finding that while the decision may imply that it is inappropriate to split a trial if a party is deprived of the right to a jury trial, the ratio of the case was actually that the court lacked jurisdiction to do so. Thus, the issue of whether the trial should be split is a moot point if the court did not have jurisdiction to allow the split in the first place.
Blair J.A. also used semantics to further support his reasoning. Subsection 108(1) of the Courts of Justice Act states:
A party may require that the issues of fact be tried or the damages assessed, or both, by a jury…
The Court of Appeal held that it was a conscious choice to use the phrase “by a jury” as opposed to “by any jury” or “by jury.” The inclusion of “a” suggests multiple issues should be tried by a single jury.
The SCC refused leave to appeal, thus the Court of Appeal’s analysis remains the precedent in regards to the bifurcation of jury trials.
The Impact of the New Rules of Civil Procedure
In its obiter dicta, the Court of Appeal explained why a court may not have inherent jurisdiction to bifurcate in jury cases, while it does in judge only cases.
Before January 1, 2010 (when the amended Rules of Civil Procedure came into force) no rule expressly outlined the power to split a civil trial. However, in Elcano, the court noted that the power to bifurcate could fall under the inherent jurisdiction of a court.
The Court of Appeal outlined this apparent discrepancy and, in my opinion, provided a clear and logical answer. In a judge only trial, the same judge deals with all of the issues, albeit at different times. To force the bifurcation of a jury trial would result in inconsistencies between judge trials. As well, the bench addressed the concern surrounding the former Rule 77.02 (the rule of case management) which establishes a system that may reduce unnecessary cost and delay. The appellants contended that the rule suggested courts manage their own proceedings. However, as Blair J.A. wrote, “there is nothing in former Rule 77…that touches on the severance of issues in an action for separate trials.”
Further, the amended Rules introduced Rule 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.
As the accident occurred prior to January 1, 2010 the old Rules applied. However, the introduction of Rule 6.1.01 suggests the Rules Committee intended to clarify and solidify the law surrounding these circumstances.
The Court of Appeal logically applied the law and provided obiter policy considerations in support of the principle that two juries may not try the same issue without consent of both parties. To do so otherwise may result in inconsistencies between the outcomes of the separate trials. In an interesting turn of events, the amended Rules of Civil Procedure not only have clarified the proceedings now and in the future, but have a significant impact on past occurrences.