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Two Not Always Better Than One

13-Apr-12

by Kathleen Bellows

April 13, 2012

Last week, the Court of Appeal released its decision in Gallant v. Farries on the issue of severing a trial into multiple trials. The Chambers Judge ordered that the trial in this medical malpractice lawsuit be split into two trials, one on liability and another on damages. The defendant who had opposed the application brought the appeal.

The claim is against an anesthetist. The already mentally disabled adult plaintiff alleged he had become further disabled as a result of oxygen deprivation during the removal of his wisdom teeth. The anesthetist defended on the basis that nothing out of the ordinary occurred during the procedure and that there was no oxygen deprivation.

In setting aside the Order of the Chambers Judge, the Court of Appeal was clear that this was not a case where severing the trial was appropriate. The new Rules of Court, which came into effect November 1, 2010, did not change any of the principles which had previously applied to having the trial of an action severed or split. Under the previous Rules, there was a high bar to have a trial split, only in rare circumstances would this be ordered. This decision makes it clear that any recent cases which have ordered a split more easily, based on the new Rules of Court, are incorrect.

In order to have a trial split one must show that this will result in reduced expense overall, a substantially shorter trial (i.e. overall time savings) or will dispose of part, or all, of a claim. Therefore, as under the previous Rules, it will only be in rare cases where a trial will be split into more than one trial. There must be evidence to support a real likelihood that one of the above goals will be met. A mere hope of time or money savings is not enough, there must be evidence to show savings are likely.

This case was extremely complicated, the Court of Appeal found that not only was severing the trial not likely to result in saving, but is was likely to result in increased costs and time spent by all parties.

This decision has two important implications. Firstly, it will be difficult to convince the Court that a trial should be split. Secondly, case law developed prior to the introduction of the new Rules of Court remains applicable. The general principles are the same, trials should only be split in clear cases where savings are likely to result. Parties who had been hoping to rely on case law to support severance applications since the new Rules were introduced will not be able to do so.



 

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