HSH Partner, Kaitlyn MacDonell and Associate, Luis Palacios, recently secured an important procedural victory in Blaney v. Werstine et al., 2026 ONSC 4880, successfully opposing a defendant’s motion to bifurcate a personal injury jury trial into separate trials on liability and damages.
The decision provides helpful guidance on Ontario’s relatively new bifurcation rule and confirms that, while courts now have express authority to order separate hearings without the consent of all parties, bifurcation should not be ordered simply because it might result in a shorter proceeding or encourage settlement.
Ontario’s New Rule on Bifurcation
Before July 1, 2024, a civil trial could only be bifurcated with the consent of the parties. Under the new Rule 6.1.01, a court may order separate hearings even without consent.
In deciding whether to do so, the Court must consider several factors, including whether separate hearings will simplify the proceeding or substantially reduce costs, whether the issues can genuinely be separated without duplicating evidence or risking inconsistent findings, whether a party will be prejudiced or unfairly advantaged, and the stage of the proceeding at which bifurcation is sought.
A Possible Efficiency Is Not Enough
A central argument advanced by the defence was that determining liability first could lead to settlement of the damages portion of the case and avoid the need for a lengthy second trial.
Justice Braid was not satisfied that this possibility was sufficient.
The Court adopted the reasoning in LaPointe v. Simcoe Muskoka Catholic District School Board, 2024 ONSC 4040, finding that the word “will” in Rule 6.1.01 requires the party seeking bifurcation to put forward evidence decisively demonstrating a positive benefit—such as actually shortening or simplifying the proceeding or producing substantial cost savings.
In Blaney, the defence could establish only that a liability trial “may” or “could” lead to a settlement. The Court found there was no evidence demonstrating that bifurcation would actually shorten the proceeding or produce real and substantial cost savings.
That distinction is important. The possibility that bifurcation might create efficiencies is not the same as evidence that it will do so.
The Risk of Two Juries and Inconsistent Findings
The Court also accepted the plaintiffs’ argument that liability and damages were not as easily separated as the defendant suggested.
Evidence about how the collision could also assist the jury in understanding the Plaintiff’s injuries and damages. In this case, the Plaintiff and her parents would also be required to testify about both liability and damages.
As Justice Braid recognized, requiring two different juries to assess the credibility of the same witnesses creates a risk of inconsistent findings. The Court therefore concluded that, although liability and damages were “somewhat severable,” there would be repetition of evidence and a risk of inconsistent findings of fact and credibility. The issues were consequently not clearly severable.
Protecting the Right to a Single Jury Trial
Justice Braid noted the longstanding principle in Ontario that litigants have a right to have disputed issues of fact and mixed fact and law determined by a single jury. Although the new Rule 6.1.01 changes the previous law governing bifurcation, the amendments to the Rules were not accompanied by corresponding amendments to sections 108(1) or 138 of the Courts of Justice Act.
The Court concluded:
“Even though the rule has changed, the court should be slow to bifurcate a trial if one of the parties objects to it…”
Justice Braid ultimately found that requiring the plaintiffs to prepare for potentially two separate jury trials, without any certainty that doing so would narrow the issues or save trial time, would unduly prejudice the plaintiffs.
Timing Matters
The timing of the motion was another significant consideration.
The bifurcation request was argued just 20 business days before the commencement of the trial sittings, at a time when trial preparation was already underway.p
Justice Braid found that imposing bifurcation at such a late stage would negatively affect the plaintiffs.
The motion was dismissed.
Blaney v. Werstine provides useful guidance as Ontario courts continue to interpret and apply the new bifurcation rule.
