



COURT OF APPEAL FOR ONTARIO

CITATION: Duggan v. Durham Region Non-Profit Housing
    Corporation, 2020 ONCA 788

DATE: 20201215

DOCKET: C67430

Feldman, Fairburn and Nordheimer JJ.A.

BETWEEN

Gavin Duggan, Minor by his Litigation Guardian
    Philip Knight, and Jessica Knight, and Philip Knight

Plaintiffs

(Appellants)

and

Durham Region Non-Profit Housing Corporation

Defendant

(Respondent)

Thomas J. Hanrahan and Meredith A. Harper, for the appellants

David G. Boghosian, Avril Allen, and Shaneka Shaw Taylor,
    for the respondent

Heard: In writing June 23, 2020

On appeal from the order of the Divisional Court (Justices
    Harriet E. Sachs, Julie Thorburn, and Regional Senior Judge M. Gregory Ellies, dissenting),
    dated June 4, 2019, with reasons reported at 2019 ONSC 3445, 146 O.R. (3d) 196,
    affirming the order of Justice Janet Wilson, dated April 4, 2018, with reasons
    reported at 2018 ONSC 1811, 21 C.P.C. (8th) 405, affirming the order of Master
    Donald E. Short, dated August 25, 2017, with reasons reported at 2017 ONSC
    4875.

Feldman J.A.:

[1]

The issue on the appeal is the proper interpretation of r. 6.1.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, which provides:

SEPARATE HEARINGS

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

[2]

The case is a personal injury claim on behalf of an infant plaintiff and
    his parents. Neither side served a jury notice. The plaintiffs asked the court
    to delay setting a date for trial until the minor plaintiffs injuries had stabilized.
    The defendant opposed that motion but, in the alternative, asked the court to
    bifurcate the liability and damages issues. The Master granted the plaintiffs request
    to adjourn, but only for the damages trial, and granted the defendants request
    for bifurcation. The plaintiffs appealed the bifurcation order on the grounds
    that r. 6.1.01 does not permit the court to make a bifurcation order without
    their consent.

[3]

The courts below dismissed the plaintiffs appeal. The majority of the
    Divisional Court held that the effect of r. 6.1.01 is to allow the court to
    order bifurcation of a jury trial only when the parties consent, but where the
    trial is by judge alone, the court retains its inherent jurisdiction to
    bifurcate without the consent of the parties. The dissenting judges view was
    that r. 6.1.01 applies equally to jury and non-jury trials and that the consent
    of the parties is required in both situations before a court may order a trial
    to be bifurcated.

[4]

For the reasons that follow, I agree with the dissenting judge. I would
    allow the appeal.

Background Facts and Judicial History

[5]

The appellants are an infant plaintiff and his parents. At age 4, the infant
    plaintiff fell from a second-floor balcony of the apartment his parents leased
    from the respondent, and suffered significant head injuries.

[6]

In 2017, when the child was 11, the appellants moved for an extension of
    time of three years to set the action down for trial, in order to obtain further
    evidence on his injuries and prognosis as he aged. The respondent not only opposed
    the motion for an extension of time but also brought a cross-motion for an
    order bifurcating the trial on the issues of liability and damages, with a view
    to proceeding to set down the liability hearing. The appellants opposed the
    motion to bifurcate the trial.

[7]

The Master granted the appellants request to extend the time for the
    assessment of damages, but, over the appellants objection, he granted the respondents
    request to bifurcate the trial, allowing the issue of liability to proceed
    before the damages hearing.

[8]

The appellants appealed the latter decision on the basis that r. 6.1.01 does
    not give the court jurisdiction to order bifurcation without the consent of the
    parties, or, alternatively, that if the court did have jurisdiction,
    bifurcation should not have been ordered on the record before the court.

[9]

On appeal to the Superior Court, the Superior Court appeal judge upheld
    the decision of the Master. She found that r. 6.1.01 did not oust the inherent
    jurisdiction of the court to order bifurcation without the consent of the
    parties in a judge-alone trial. In the exceptional circumstances of this case,
    she agreed that bifurcation was appropriate.

[10]

Leave
    to appeal was granted by the Divisional Court. The majority of the court
    confirmed the decision of the Master and the first appeal judge. The majority
    held that the effect of the rule is to broaden the courts ability to bifurcate
    trials to include the bifurcation of jury trials with the consent of the
    parties, but not to remove the courts inherent jurisdiction to bifurcate
    non-jury trials without the consent of the parties.

[11]

The
    majority also found that it was not bound by the 2015 decision by Molloy J. of
    the Divisional Court in
Bondy-Rafael v. Potrebic
,
2015 ONSC
    3655, 128 O.R. (3d) 767, leave to appeal to Ont. C.A. refused, M45885 (March
    30, 2016), where the court held that r. 6.1.01 applies to both jury and
    non-jury trials. The court reasoned that because
Bondy-Rafael

was
    a jury case, the pronouncement with respect to non-jury cases was
obiter
    dictum
.

[12]

The
    majority decision also rejected Molloy J.s conclusion that r. 6.1.01 occupied
    the field on the ability of a court to order bifurcation, and found that the
    courts inherent jurisdiction to order bifurcation in non-jury cases had not
    been ousted, as the wording of the rule was not clear enough. The court also pointed
    to the word may in the rule as permissive language that did not preclude the court
    from also making a bifurcation order without the consent of the parties.

[13]

Finally,
    the majority said that its interpretation of r. 6.1.01 was consistent with the Supreme
    Court of Canada decision in
Hryniak v. Mauldin
,
2014 SCC 7,
    [2014] 1 S.C.R. 87, where the court stated that the process [of adjudicating
    disputes] is illusory unless it is also accessible

proportionate, timely and affordable.
    The majority also found support in r. 1.04 of the
Rules
, which
    provides that the rules should be interpreted liberally.

[14]

In
    upholding the decision of the first appeal judge, the majority summarized its
    holding in three conclusions, at paras. 38-40:

A plaintiff has a presumptive right to have all issues dealt
    with in a single trial. However, this right is not absolute and bifurcation of
    issues may be necessary and in the interests of justice in limited and
    exceptional cases.

Rule 6.1.01 enables the court to bifurcate a jury trial where
    the interests of justice dictate and on the consent of the parties, a right
    unavailable to the Court prior to the enactment of the Rule.

For the above reasons, in exceptional cases, the court should
    not be restricted from exercising its inherent jurisdiction in a non jury case
    because one party refuses to consent.

[15]

The
    dissenting judge found that the court had no authority to bifurcate the trial
    without the consent of the parties. He agreed with Molloy J. in
Bondy-Rafael
that the legislature had occupied the field by enacting r. 6.1.01 and that it
    did so with clear and unambiguous language.

[16]

He
    also pointed out that, prior to the enactment of r. 6.1.01, the court already had
    the jurisdiction to bifurcate a jury trial with the consent of the parties.
    This undercut the premise of the majority that the intent of the rule was to
    extend the courts jurisdiction to bifurcate jury trials on consent, rather
    than limit its jurisdiction to bifurcate without consent in non-jury trials. As
    the rule therefore added nothing in the jury context, the purpose of the rule
    must have been to limit the courts ability to bifurcate in the non-jury
    context only to cases where the parties consent and thus make the ability to
    bifurcate consistent, whether the trial was to be by jury or by judge alone.

Issue

[17]

Leave
    to appeal to this court was granted in order to address one issue: does r. 6.1.01
    limit the courts ability to bifurcate a trial only on consent in both jury and
    non-jury trials, or does the court retain its inherent jurisdiction to bifurcate
    a non-jury trial over the objection of one or both parties?

Analysis

[18]

As
    this question involves a matter of statutory interpretation, the standard of
    review is correctness:
TELUS Communications Inc. v. Wellman
, 2019 SCC
    19, [2019] 2 S.C.R. 144, at para. 30.

[19]

The
    principles to be applied are found in the familiar test from the Supreme Court
    decision in
Bell ExpressVu Ltd. Partnership v. Rex
, 2002 SCC 42,
    [2002] 2 S.C.R. 559,

at para. 26, taken from Driedgers
Construction
    of Statutes
:

Today there is only one principle or approach, namely, the
    words of an Act are to be read in their entire context and in their grammatical
    and ordinary sense harmoniously with the scheme of the Act, the object of the
    Act, and the intention of Parliament.

See also Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th Ed. (Markham, Ont.: LexisNexis
    Canada, 2014) at paras. 2.1-2.5.

Wording of the Rule

[20]

The
    first step is to examine the words of r. 6.1.01 itself, found under the
    heading: Separate Hearings. I restate the text of the rule for ease of
    reference:

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.

[21]

The
    majority decision under appeal finds that the rule should be interpreted to
    differentiate between jury and non-jury cases. However, nothing in the wording
    of the rule suggests any such distinction. To the contrary, the rule applies to
    a proceeding, defined in r. 1.03(1) to mean an action or an application. A
    jury notice for the trial of factual issues can be served in an action (Rule
    47). Rule 6.1.01 does not differentiate between an action to be tried by a
    judge alone or by a judge and jury; on its face, it applies to all proceedings.

Purpose and Context of the
    Rule

[22]

The
    state of the law before the rule was enacted is an important contextual factor
    for interpreting the rule, the intent of the Civil Rules Committee (CRC) and
    of the legislature. Blair J.A. explained the courts power to bifurcate before
    the enactment of the rule, together with the history and rationale for the
    interpretation of the courts inherent jurisdiction in
Kovach (Litigation
    Guardian of) v. Kovach
, 2010 ONCA 126, 100 O.R. (3d) 608, leave to appeal
    refused, [2010] S.C.C.A. No. 165.

[23]

Before
    r. 6.1.01 was enacted, neither the
Courts of Justice Act
, R.S.O. 1990,
    c. C.43 (
CJA
), nor the
Rules

expressly conferred the
    power to bifurcate a civil trial. Nevertheless, as Morden J.A. explained in
Elcano
    Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills
, 55 O.R. (2d)
    56 (C.A.), at p. 5, the court had the inherent jurisdiction to exercise its
    discretion to bifurcate a non-jury trial, including ordering separate hearings
    to determine liability and damages. He described the power as narrowly
    circumscribed. The power to bifurcate had to be exercised with caution and in
    the interests of justice:
Elcano
, at p. 6.

[24]

However,
    it was accepted that the inherent jurisdiction to bifurcate did not extend or
    would not be exercised in the case of a trial where a jury notice had been
    served, except on the consent of the parties. Courts reasoned that bifurcating
    a jury trial without consent would conflict with a litigants statutory right
    to have issues of fact or of mixed fact and law decided by a jury:
CJA
,
    s.108(1);
Kovach
, at paras. 24-28.

[25]

Like
    the dissenting judge below, I do not read the jurisprudence prior to the
    enactment of r. 6.1.01 as preventing a court from bifurcating a jury trial
    where the parties consent. In
Kovach (Litigation Guardian of) v. Kovach
,
    (2009) 95 O.R. (3d) 34 (Div. Ct.), the Divisional Court considered whether courts
    could bifurcate jury trials with consent. The Divisional Court concluded that
    courts had this power, but warned against granting this request lightly. At
    para 45, it held that: 
We are
    not prepared to conclude that under no circumstances may a jury trial be bifurcated.
    If all parties to the action consent
, the judge will then be
    required to determine whether it is appropriate.

[26]

On
    the appeal, Blair J.A. reached a similar conclusion. Near the end of his
    reasons, at para. 42, he concluded that: The practice in Ontario has long been
    understood to preclude the bifurcation of trials where a jury notice has been
    served,
in the absence of consent
. [Emphasis added].

[27]

These
    conclusions are consistent with the reasons for not extending the courts inherent
    jurisdiction to bifurcate to jury trials. A litigants right to a jury is
    entrenched in the
CJA
. The courts inherent jurisdiction cannot be
    exercised in a way that undermines this statutory right:
Kovach
, at
    para. 25;
Baxter Student Housing Ltd. v. College Housing Co-operative Ltd.
,
    [1976] 2 S.C.R. 475, at p. 480.

[28]

If
    a party consents, however, they voluntarily give up their right to have the
    issues tried by a single jury. Nothing in the
CJA
suggests that a
    party cannot waive this right. Indeed, if that Act prevented courts from
    bifurcating jury trials on consent, that jurisdictional impediment would still
    exist today, regardless of r. 6.1.01. Section 66(3) of the
CJA

provides
    that the CRC cannot make rules that conflict with a statute.

[29]

Rule
    6.1.01 must be read with this background in mind. The rule was enacted in 2008
    and came into force in 2010 as part of a package of changes to the
Rules
following the delivery of the Honourable Coulter A. Osbornes report entitled
Civil
    Justice Reform Project: Summary of Findings & Recommendations

(Toronto:
    Ontario Ministry of the Attorney General, 2007) (Osborne Report) which recommended
    changes to the civil justice system. The Osborne Report recommended that a rule
    be enacted by the CRC to address the courts discretion to order bifurcation,
    and to set out the criteria that could be applied. The report does not suggest
    that there be different rules for jury and non-jury cases, nor does the
    discussion, set out below, refer to any distinction:

Pre-Trials and Trial Management:

One trial management issue  bifurcation  requires
    separate comments. The power to order issues in an action to be split into two
    or more trials is not expressly conferred by statute or the Rules of Civil
    Procedure. The power to order bifurcated proceedings appears to exist as part
    of the inherent jurisdiction of the court. In the leading case, the Court of
    Appeal held that it is a basic right of a litigant to have all issues in
    dispute resolved in one trial and that bifurcation must therefore be regarded
    as a narrowly circumscribed power.  In a later case,
Bourne v.
    Saunby
, the Ontario Court (General Division) listed fourteen criteria that
    the court should consider when evaluating the merits of a motion to sever
    liability from damages. The catalogue of factors set out in
Bourne
,
    though not an exhaustive list, is generally taken into account in determining
    whether bifurcation should be allowed. A decision of the Divisional Court
    suggests that a party's inability to fund the litigation is an extraneous factor
    that should not be considered when deciding whether to bifurcate a trial.

While I view bifurcation to be the exception, cost
    considerations militate in favour of bifurcation in some cases. In commercial
    litigation, for example, when dealing with damages will expose a party and
    sometimes all parties to significant costs, it may make sense to separate the
    issues of liability and damages and deal with liability first. Upon the
    determination of one issue, parties may be inclined to settle the balance of the
    issues in dispute. This can result in a significant savings of time, money and
    judicial resources. It would also be of particular benefit to those litigants
    who cannot afford a trial of all issues. There is no doubt that bifurcation can
    delay the final resolution of the entire proceeding and, where issues overlap,
    evidence and testimony may need to be repeated. Where these concerns apply, a
    bifurcation order should not be made.

The Civil Rules Committee should consider
    prescribing, at least in general terms, when it is open to the court to make a
    bifurcation order. In the end, the court's discretion in making bifurcation
    orders should be expanded while recognizing that bifurcation remains the
    exception, not the rule.

Recommendations:


The Civil Rules Committee should consider addressing
    bifurcation in a rule that would permit an order for bifurcation to be made on
    motion by any party or on the courts own initiative, after hearing from the
    parties. Any rule permitting bifurcation could reference some or all of the 14
    factors listed in
Bourne v. Saunby
.

[30]

Rule
    6.1.01 was enacted following the report. It granted the court discretion to
    order bifurcation by using the word may. The criteria to be applied are not
    set out explicitly, but the list of factors to consider provided in the
Bourne
    v. Saunby
, (1993), 23 C.P.C. (3d) 333 (Ont. Gen. Div.) case remains
    available to guide a court in making an order that is in the interests of
    justice.

[31]

What
    the rule adds, and arguably was not contemplated by the Osborne Report recommendation,
    is the precondition for the exercise of the discretion that bifurcation be on
    the consent of the parties. Placed in the context of the previous state of the
    law, the rules requirement for the parties consent before bifurcation may be
    ordered confirms the courts power in jury cases, but it circumscribes the
    courts inherent jurisdiction in non-jury cases.

The Rules Interaction
    with Inherent Jurisdiction

[32]

The
    majority decision below also found that the rule does not occupy the field or
    oust the inherent jurisdiction of the court to order bifurcation in a non-jury
    trial without the consent of the parties. Referring to the decision of
R.
    v. Rose
, [1998] 3 S.C.R. 262, at para. 133, the majority below found that
    the language of the rule does not contain the clear and precise wording
    necessary to oust the inherent jurisdiction of the court. Also, referring to the
    use of the word may in the rule, the court stated that the rule is
    permissive, not mandatory, and that the language of the rule does not state
    that bifurcation may
only
be granted where the parties consent.

[33]

I
    reject these findings as constituting an error of law in the interpretation of
    the rule.

[34]

The
    majoritys reasons suggest that the language of the rule means that the court
    is permitted to make the order on consent, but that that is not the only time
    it is permitted to do so. Because the rule is not mandatory but uses the word
    may, they say, the court may make the order on consent, but may also make the
    order where there is no consent.

[35]

That
    conclusion is also linked to the majoritys assertion that the rule does not
    contain clear language that precludes the court from exercising its previous
    inherent jurisdiction to order bifurcation in non-jury trials where there is no
    consent.

[36]

In
    my view, there is no basis either in the language of the rule, or in its
    purpose, that substantiates the majoritys interpretation.

[37]

The
    purpose and effect of the word may in the context of the wording of the rule is
    to give the court the discretion to make an order, but not require it to do so,
    even where the parties consent. That discretion allows the court to implement the
    philosophy of s.138 of the
CJA
,
which provides that As far as
    possible, multiplicity of legal proceedings shall be avoided. It also accords
    with the cautionary approach to the previous inherent jurisdiction to make such
    orders referred to by Morden J.A. in
Elcano

at p. 5,

as
    follows: since it is a basic right of a litigant to have all issues in
    dispute resolved in one trial it [the inherent jurisdiction of the court] must
    be regarded as a narrowly circumscribed power.

[38]

In
    my view, the language of the rule precludes making an order without the consent
    of the parties. To test that conclusion, I ask the following question: can the authority
    granted by the rule and the inherent jurisdiction live together? Or does one preclude
    the other? See I. H. Jacob, The Inherent Jurisdiction of the Court (1970), 23
Curr
.
Legal Probs
23, at p. 24, approved by LHeureux-Dube J.
    in
Rose
at para. 64:

Moreover, the term inherent jurisdiction of the court is not
    used in contradistinction to the jurisdiction conferred on the court by
    statute. The contrast is not between the common law jurisdiction of the court
    on the one hand and its statutory jurisdiction on the other, for the court may
    exercise its inherent jurisdiction even in respect of matters which are
    regulated by statute or by rule of court,
so long as it can do so without
    contravening any statutory provision
. [Emphasis added.]

[39]

In
    this case, the rule cannot be interpreted to mean that the court is granted the
    discretionary power to order bifurcation where there is consent, but it can
    also order bifurcation without consent. The authority of the court to make the bifurcation
    order is predicated on the opening words of the rule, with the consent of the
    parties. Contrary to the finding of the majority below, by making consent a
    precondition of the exercise of the courts discretion, the drafters have used
    clear and precise language that limits the courts authority under the rule to
    consensual orders. To interpret it otherwise, would undermine the unequivocal wording
    and meaning of the rule. Inherent jurisdiction cannot be exercised so as to conflict
    with a statute or rule:
Baxter
,

at p. 480.

[40]

In
    this case, the majoritys interpretation of the rule requires the court to read
    in a distinction based on whether the order is being made in the context of a
    jury or a non-jury trial, without any basis in the wording for doing so.
    Reading in such a distinction is inappropriate because it conflicts with the unambiguous
    direction that the rule applies to all proceedings.

[41]

I
    would also test whether the language is clear by considering how a
    self-represented litigant would read the rule. When there was no rule, such a
    litigant would have had to look at other sources, including the case law, to
    ascertain what power the court had to order bifurcation. But where there is a
    rule that on its face speaks to the issue and contains no exceptions, it would
    come as a surprise to be told that in the face of the words of the rule, the
    court retains an inherent jurisdiction to make an order that is directly contrary
    to the words of the rule.

[42]

In
    my view, this case can usefully be compared with, and distinguished from,
Ziebenhaus
    (Litigation guardian of) v. Bahlieda
, 2015 ONCA 471, 126 O.R. (3d) 541,
    where the issue was whether s. 105 of the
CJA
, which allows a court in
    the context of a proceeding to order a physical or mental examination of a
    party by a health practitioner, defined to mean a licensed physician, dentist,
    or psychologist, has the effect of ousting the inherent jurisdiction of the
    court to order an assessment by someone who is not a health practitioner.

[43]

In
    analyzing the intent of the legislature, the court perceived a gap in the
    statutory provisions which failed to address the numerous assessments by other
    practitioners that are routinely relied on in personal injury litigation. It
    concluded that it would not be contrary to the intent of s. 105 to allow the
    court to also make orders for such assessments to ensure justice and fairness. Most
    importantly, the court found that while the language of the section permits the
    court to order examinations by the defined health practitioners, it does not
    clearly preclude the court from making orders for other assessments where it is
    in the interests of justice to do so.

[44]

Comparing
    the statutory provision in
Ziebenhaus
with r. 6.1.01, while both
    provisions use the permissive may language that gives the court discretionary
    power to make a certain order, s. 105 of the
CJA
does not contain any
    language that constrains the court from making another order, while r. 6.1.01 limits
    the court to exercise its discretion where the parties consent. Taken together,
    the words with the consent of the parties and proceeding in the rule are
    limiting words that do not permit the authority granted by the rule and the
    courts inherent jurisdiction in non-jury trials to live together. May in
    this context can have only one meaning; the court can refuse to grant the
    bifurcation motion despite the consent of the parties.

Additional Considerations:
    Judicial Efficiency

[45]

The
    majority decision below also supported its analysis of the meaning of the rule
    by referring to the Supreme Court of Canada decision in
Hryniak
, with
    its emphasis on making the litigation process accessible

proportionate,
    timely and affordable, and to r. 1.04 of the
Rules
, that calls for
    the rules to be interpreted liberally.

[46]

The
Hryniak
decision involved summary judgment and the use that a summary
    judgment motion judge can make of the trial management powers contained in r. 20
    of the
Rules
, which includes the power to decide an issue that does
    not require a trial and order a trial of the other issue or issues.

[47]

Requiring
    the consent of the parties as a precondition to a bifurcation order pursuant to
    r. 6.1.01 in non-jury proceedings is not inconsistent with the courts power to
    order partial summary judgment. In such cases, the court has decided that one
    issue does not require a trial, so that there is no bifurcation where two
    trials are held.

[48]

This
    court has already explained in
Mars Canada Inc. v. Bemco Cash & Carry
    Inc.
,
2018 ONCA 239, 140 O.R. (3d) 81, at para. 36, that r. 6.1.01
    does not apply in the context of a summary judgment motion where the motion
    judge has the power to decide issues that do not require a trial, and, where it
    is appropriate to do so, to leave the balance of the issues to be tried as
    directed.

[49]

To
    the extent that the majoritys reference is to the desirability of having the
    court be able to case manage an action to make it proceed more efficiently and
    cost effectively, it is evident that in enacting the rule the way it is, the
    CRC determined that on the issue of bifurcation, fairness requires that any
    such order only be made where the parties consent. One can imagine legitimate
    reasons why a party may not consent, such as the cost of preparing twice for a
    trial in the context of a contingency fee arrangement, and the potential for an
    appeal of the liability finding with the cost and delay associated with it.

[50]

In
    any event, such policy considerations would already have been considered by the
    CRC in arriving at the wording of the rule with its restriction to consent
    orders.

Stare Decisis

[51]

Before
    concluding these reasons, it is, I believe, important to address the issue of
stare
    decisis
in the context of the decision of the Divisional Court in
Bondy-Rafael
.
    While that decision was not unanimous, the majority decided unequivocally that r.
    6.1.01 limits the courts power to bifurcate a proceeding to actions, whether
    jury or non-jury, where the bifurcation is on consent of the parties. In this
    case, all levels of court from the Master on up took the view that they were
    not bound by the
Bondy-Rafael
decision. In my view, they erred in so
    doing.

[52]

The
    doctrine of
stare decisis

requires that all courts follow and
    apply authoritative precedents. Intermediate appellate courts, like the
    Divisional Court, are generally bound by their past decisions:
Kovach

(Divisional Court), at para. 42;
Fernandes v. Araujo
, 2015 ONCA
    571, 127 O.R. (3d) 115, at para. 45. As Sharpe J.A. explained in
Fernandes
,
    at para. 45, this doctrine is a bedrock principle of our legal system:

As an intermediate court of appeal, we are ordinarily bound to
    follow our past decisions, even decisions with which we disagree. It is important
    that we do so. Our common law legal tradition rests upon the idea that we will
    adhere to what we decided in the past. As expressed by the Latin phrase
stare
    decisis
, we stand by things that have been decided. The rule of precedent
    provides certainty, consistency, clarity and stability in the law. It fosters
    the orderly and efficient resolution of disputes and allows parties to obtain
    reliable legal advice and to plan their affairs accordingly.

[53]

The
    Superior Court appeal judge addressed the
stare decisis
issue
    directly. She concluded that the
Bondy-Rafael
decision was not binding
    for two reasons: 1) The
ratio decidendi
of the decision was the
    application of the rule to a jury trial. The discussion of how the rule applied
    to a non-jury trial was therefore
obiter dictum
and not binding; 2)
    Applying the test from the Supreme Court of Canada decision in
Carter v.
    Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, the decision
    in
Hryniak
constituted a change in the circumstances or evidence that
    fundamentally shifts the parameters of the debate regarding the conduct of
    civil litigation, that allowed the court to reconsider its prior decision on the
    proper interpretation of the rule.

[54]

The
    majority decision below did not address the
Carter
basis, but found
    that the
Bondy-Rafael
case was not binding because it involved a jury
    trial and, therefore, Molloy J.s interpretation of the rule as it applies to
    non-jury trials was
obiter dictum
. I would reject these arguments.

[55]

In
R. v. Puddicombe
, 2013 ONCA 506, 308 O.A.C. 70, leave to appeal
    refused, [2013] S.C.C.A. No. 496, a five-judge panel of this court considered
    the jurisprudence from the Supreme Court of Canada in
R. v. Henry
,
    2005 SCC 76, [2005] 3 S.C.R. 609, regarding to what extent
obiter dictum
from that court is to be treated as binding. In
Henry
, the court
    explained at para. 57:

All
obiter
do not have, and are not intended to have,
    the same weight. The weight decreases as one moves from the dispositive
ratio
    decidendi
to a wider circle of analysis which is obviously intended for
    guidance and which should be accepted as authoritative. Beyond that, there will
    be commentary, examples or exposition that are intended to be helpful and may
    be found to be persuasive, but are certainly not binding

[56]

In
Puddicombe
, at para. 68, the court confirmed its approach from
R.
    v. Prokofiew
, 2010 ONCA 423, 100 O.R. (3d) 401, affd 2012 SCC 49, [2012]
    2 S.C.R. 639, following
Henry
,
that 
obite
r
that was integral to the analysis underlying the
ratio decidendi
 is
    binding on this court, while 
obiter
that was incidental or collateral
    to that analysis is not.

[57]

Applying
    that approach, an examination of the majority decision in
Bondy-Rafael
makes it apparent that the courts interpretation of the rule requiring consent
    to bifurcate in all cases is based on a single analysis encompassing all
    proceedings, jury and non-jury. It is either not
obiter
, or, to the
    extent that the interpretation of the rule as it applies in the non-jury
    context may be considered to be
obiter dictum
, that part of the
    analysis is integral to the
ratio
of the case and therefore binding.

[58]

Paragraph
    35 of the majority judgment in
Bondy-Rafael
demonstrates this clearly:

Counsel for the respondents submits that it could not have been
    the intent of the Rules Committee to remove the inherent jurisdiction to order
    bifurcation because the Rule is expressed in permissive rather than prohibitory
    manner. He points as well to the trend towards a more expansive approach to
    these kinds of issues, as reflected in other Rules and jurisprudence in areas
    such as summary judgment, which he suggests supports an interpretation of the
    Rule that retains the common law jurisdiction to order bifurcation over the
    objections of the parties in non-jury trials. I do not find that submission to
    be persuasive. The Rule is clear. It makes no distinction between a jury trial
    and a non-jury trial. In both cases, consent is required before the judges
    discretion as to whether to order bifurcation is triggered. Whether this is
    expansive or restrictive of the prior common law is irrelevant. In any event,
    the current Rule could be said to be both expansive (in that it applies to jury
    trials) and restrictive (in that for non-jury trials consent is now mandatory,
    whereas at common law it was only a very strong factor). Perhaps the intent was
    to take a balanced approach. However, it is the language of the Rule itself
    which governs. In the absence of any ambiguity or lacunae in the Rule itself,
    it is not relevant to consider what might have been the intention of the Rules
    Committee, particularly when that requires us to speculate on what it might
    have been.

[59]

Furthermore,
    in my view, it was not open to any of the courts that decided the case under
    appeal to treat the
Bondy-Rafael
decision as
obiter
, the very
    same argument having been rejected by this court in the
Kovach
appeal
    in relation to comments that Morden J.A. had made in the
Elcano

decision
    in his analysis of the extent of the inherent jurisdiction of the court to
    bifurcate.
Elcano

was not a jury case, but while describing the
    courts power in non-jury cases, Morden J.A. enunciated the jury exception to
    the exercise of the courts inherent jurisdiction. In the
Kovach
appeal, the appellant argued that Morden J.A.s comments in the jury context
    were
obiter
.

[60]

Blair
    J.A. firmly rejected the submission at para. 18:

First, Justice Mordens comment in
Elcano
is
not
obiter dicta
, in my view. An expert in
    procedural matters, Justice Morden was not given to discursive comments. It is
    true that
Elcano
was not a jury case. Having concluded that the courts
    inherent jurisdiction empowered it to bifurcate a trial in appropriate
    circumstances, however, it was necessary for him to state the exception in
    order to make the proposition he was enunciating accurate. This does not make
    the caveat he expressed
obiter
; it was essential to his reasoning
    process, and therefore part of the
ratio decidendi
of the decision.

[61]

Similarly,
    in the
Bondy-Rafael
case, Molloy J.s analysis of the rule had to
    involve both jury and non-jury situations; as in
Elcano
, both parts
    were essential to the interpretive analysis of the rule.

[62]

I
    would also reject any applicability of the
Carter
decision on
stare
    decisis
to this case. In
Carter
, at para. 44, the Supreme Court discussed
    two circumstances where a court would not be bound by
stare decisis
: where
    a new legal issue is raised or where there is a change in the circumstances or
    evidence that fundamentally shifts the parameters of the debate. In this
    case, the
Bondy-Rafael

decision interpreting the same rule was
    decided after the
Hryniak
case in the Supreme Court. There was no
    basis for the courts below to ignore the doctrine of
stare decisis
.

[63]

The
    doctrine of
stare decisis
makes an important contribution to the
    cost-effective and efficient management of litigation by ensuring that a legal
    issue, including the interpretation of a legislative provision, regulation or
    rule, once decided, is not relitigated in the next case. In my view, the courts
    below erred in law by failing to treat the
Bondy-Rafael
case as
    binding.
[1]

Conclusion

[64]

I
    agree with the analysis in the dissenting reasons below. I would allow the
    appeal, set aside the decision of the Divisional Court majority and the order
    bifurcating the trial of the liability and damages issues with costs of the
    appeal and leave to appeal motion to the appellants. If the parties cannot
    agree on the quantum of costs, they may make brief written submissions (maximum
    2 pages) together with each of their bills of costs, within 3 weeks of the
    release of these reasons.

Released: K.F. December 15, 2020

K. Feldman J.A.

I agree. Fairburn J.A.

I agree. I.V.B. Nordheimer
    J.A.





[1]

In
Bondy-Rafael
, counsel sought to rely on r. 2.03 as
    the basis for a judge to dispense with compliance with r. 6.1.01 in the
    interests of justice. Molloy J. for the majority, at para. 36, rejected any
    application of r. 2.03 beyond irregularities or minor issues. It could not
    provide jurisdiction to dispense with compliance in the face of a Rule that
    provides to the contrary. While that argument was not raised in this case, I
    consider it part of the analysis of Molloy J. that this decision is upholding
    and that was binding on the courts below.


