Q.B. A.D. 1992 No. 3039 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN MIKOLAYCZYK, AS LITIGATION GUARDIAN OF JESSEE MIKOLAYCZYK, MINOR, SHERRY MIKOLAYCZYK and JOHN MIKOLAYCZYK RESPONDENTS (PLAINTIFFS) and CHRISTOPHER PAUL REID and CANADA TRUCK LEASE LTD. APPLICANTS (DEFENDANTS) G. A. Thompson for the applicants (defendants) J. A. Morrison for the respondents (plaintiffs) JUDGMENT BARCLAY J. March 28, 1995 This is an application by Christopher Paul Reid andCanada Truck Lease Ltd. (the "defendants") for an orderpursuant to the Court\'s inherent jurisdiction severing theissues of liability and damages. The grounds that were argued in connection with the application are as follows: (a) determination of the issue of liability in favour of the defendants will render determination of the issue of damages unnecessary; (b) given the quantum of damages claimed by the plaintiffs and the volume of evidence necessary to prove this aspect of the claim, the prior determination of the issue of liability may result in very significant reduction in trial time and costs; (c) the evidence to be heard with respect to each issue is easily segregated, and prior determination of the issue of liability will not require repetition of the evidence on that point; (d) the plaintiffs' position as to the quantum of damages claimed will not be prejudiced by prior determination of the point of liability; (e) severance of the issues will not result in any significant delay in the overall management of the action. FACTS This action arises out of tragic motor vehicle accident which occurred in the City of Saskatoon, on September 20, 1991. minor, Jessee Mikolayczyk ("Jessee"), who was riding his bicycle, collided with delivery truck operated by the defendant, Christopher Paul Reid, and owned by the corporate defendant, Canada Truck Lease Ltd. Jessee was seriously injured and such injuries include brain damage, fractured pelvis and laceration of the groin area with associated blood loss, internal injuries including injury to his bladder and bowel, collapsed lung, injury to the left eye, hearing loss and injury to the facial nerves. At the time of the accident he was years of age. Liability is in issue. The plaintiffs have served demand that the trial of the issues be heard by jury. Section of The Jury Act, 1981, S.S. 1980-81, as am. S.S. 1990-91, c. C-81, ss. 68(1) and (2) provides statutory right to jury trial in cases such as the one before the Court. This section reads: 1(1) In an action for libel, slander, malicious arrest, malicious prosecution or false imprisonment and in an action where the amount claimed exceeds $10,000, any party to the action may demand jury in accordance with The Queen's Bench (2) The party demanding jury: (a) shall deposit with the local registrar in advance of the trial any sum that the local registrar considers sufficient for the fees and expenses of the jury for the estimated length of the trial; and (b) subject to subsection (3), is responsible for the full cost of the jury and is not entitled to recover any part of the cost of the jury from the opposing party in the event of success at trial. (3) Where party is successful in an action: (a) for libel, slander, malicious arrest, malicious prosecution or false imprisonment; or (b) in respect of personal injury or death where the amount claimed exceeds $10,000; the judge presiding at the trial may make any order as between the parties regarding the cost of the jury that he considers appropriate. previous motion was made to sever and Goldenberg J. dismissed the application. He did however, grant leave to the defendants to reapply. The terms of Goldenberg J.'s order are as follows: IT IS ORDERED THAT: (a)on the undertaking of Mr. J. A. Morrison, counsel on behalf of the Respondents (Plaintiffs), that he has briefed medical practitioners and will be calling medical experts to testify as to the nature of the injuries which evidence is beyond the medical evidence which has been disclosed to date and which evidence the accident reconstruction expert retained by the Respondents (Plaintiffs) require, the application to sever the issue of liability from the issue of quantification of damages is dismissed; (b)as condition of the dismissal of the application the Respondents (Plaintiffs) shall serve and file Notice of Expert Witness disclosing the earlier referenced medical evidence referenced by their counsel in compliance with the Rules of Court at least 60 days prior to trial; (c)the Applicants (Defendants) are given leave to thereafter apply anew to sever the trial of the issues of liability and quantification of damages claimed; (d)the costs of the application are costs in the cause. THE LAW The controlling authority in Saskatchewan on the issue of severance is Central Canada Potash Co. Limited and Attorney General of Canada v. Attorney General of Saskatchewan, Minister of Mineral Resources of Saskatchewan and Government of Saskatchewan (No. 1), 1974 CanLII 976 (SK CA), [1974] C.A.). Culliton C.J. canvassed the circumstances under which an application for severance of issues will be granted. He referred to the case of Emma Silver Mining Company v. Grant (1879), 11 Ch.D. 918, in which Jessel M.R. considered this point and court's jurisdiction with respect thereto. Jessel M. R. noted, at p. 926, that: The discretion is general. Of course it is judicial discretion, and there must be sufficient reason for exercising it. He went on, at p. 927, to enunciate the rule when an application to sever is made by defendant: In case of this kind my opinion is that the Judge must have some evidence which will make it at least probable that the issue will put an end to the action. The Plaintiff is not to be harassed at the instance of the Defendant by series of trials, each trial taking issue on every link of the Plaintiff's case. That is not the meaning of the rule as understand it, but it may properly be applied in such case as that have stated, where the Judge has serious reason to believe that the trial of the issue will put an end to the action. He also noted that the situation is different than when the application is made by plaintiff, and at p. 928, commented on the difference thusly: The Defendant has of course right to shape his own case, and to say to the Plaintiff, "You must prove every part of your case; if can put my finger on one part of your case and shew that there is no foundation for it whatever, it is quite wrong to subject me to the whole expense of protracted investigation, and especially when you, the Plaintiff, cannot pay the costs of it". From his discussion of Emma Silver Mining Company v. Grant Culliton C.J., in Central Canada Potash Co. Limited, went on to enunciate what the Saskatchewan Court of Appeal considered to be the principles to be followed in determining an application such as the one at bar. He stated, at pp. 377 and 378: [T]hat separate trials should be granted only in exceptional cases, and in cases where the issues to be tried separately are simple, and that there should be some evidence which makes it at least probable that the trial of the separate issue will put an end to the action. think the principle is accepted by all courts that piecemeal trial of an action must be avoided. It appears as well that courts are reluctant to have separate trial of an issue if, in the disposition of that issue, all or most of the evidence will be called that would have been called to dispose of all the issues. In my opinion an application for severance of the issues should only be granted for the most compelling reasons and in cases in which it is probable that the trial of one issue will put an end to the action. In this case accept the submission of the plaintiffs that there is relationship between liability and damages and that both of these issues will depend extensively upon the same testimony. Counsel for the plaintiffs, in his written brief, succinctly set out the plaintiffs' position on severance in this case. He stated in part as follows: The determination of liability in this case will depend extensively upon the accident reconstruction of experts. In order to determine liability, to which the Plaintiff himself cannot speak, it will entail assessing the conflicting opinions of the accident reconstruction experts as to how the accident itself occurred. This will require, an examination of the injuries and how they where [sic] caused by the accident reconstruction expert. It is therefore necessary in order to determine liability to also determine the cause and effect of the impact of the Plaintiff and the Defendants' vehicle and that this is consistent with the nature of the injuries sustained. This will necessitate themedical testimony required to establish the quantum of damageswhich will be required to establish one of the factualunderpinning of the evidence of the accident reconstructionexpert that will be called by the Plaintiff. The Defendants are therefore grossly underestimating the substance and time that will be required to establish liability in this litigation. Such evidence would necessarily be replicated ina second trial with possibly an incongruous result. agree with this argument. In this case, the determination of liability will involve both an examination of the injuries and the contention between experts as to their origin and their significance in formulating an opinion as to how the accident happened. Therefore, severing the issues will cause repetition of this costly expert testimony and if not properly considered would be prejudicial to the plaintiffs. An important additional factor to consider is that the plaintiffs have served demand that the trial of the issues be heard by jury. If the issues of liability andquantum are severed, it is at least arguable that theplaintiffs may well be disentitled from their right to have ajury decide what is the appropriate quantum of damages. In Beddow v. Megyesi (1992), 1992 CanLII 735 (BC SC), C.P.C. (3d) 12 (B.C.S.C.), Thackray J. held no jury, whether discharged or not, can be reassembled some time later to carry on with the second part of the trial whence it followed that where the issue of liability on severed trial was tried by the court with jury, the only proper body left to hear the balance of the case is the judge who presided in the first part of the trial. On that issue Thackray J. stated at p. 19: If the liability portion of trial is by judge and jury, that jury, after discharge, cannot be reconstituted. In Lew v. Lee (1925), 1925 CanLII 320 (BC CA), 37 B.C.R. 81, [1926] D.L.R. 678 (C.A.), the Chief Justice noted that counsel could find no case, "nor can he cite one from all the history of our jurisprudence," where jury that had been discharged had been recalled to assess damages. The court held that such jury could not be recalled. I would go further and say that no jury, whetherdischarged or not, can be reassembled some time later to carryon with the second part of the trial. The court in Beddow also emphasized that credibility considerations, even though made on the issue of liability, are part of the entire trial. Evidence such as impact and severity of impact continue to be relevant evidence in the quantum portion of the trial. This was commented on by Trainor J. in Bernhardt et al. v. Vernon Board of School Trustees et al. (1979-80), 11 C.P.C. 82 (B.C.S.C. At p. 84 Trainor J. stated: Both the assessment of credibility and an appreciation of the nature and extent of injuries and consequent damage can best be achieved by trying the issues together. am also comforted by the comments of Thackray J. in Beddow in which he stated at p. 171: In Bernhardt, Mr. Justice Trainor referred to the remarks of Lord Denning in Coenen [v. Payne [1974] W.L.R. 984, [1974] All E.R. 1109 (C.A.)] that the normal practice is for liability and damages to be tried together, "but the courts should be ready to order separate trials wherever it is just and convenient to do so." However, Trainor J. preferred the approach of Stephenson L.J. in Coenen who stated [p. 1114]: In most personal injury cases the issues of liability and damages, though clearly separate, are rightly tried together. That is so, even where the issue of damages, perhaps because of complicated medical evidence, takes longer to try than the issue of liability. In personal injuries case the courts will not depart from the normal practice except for good reason. have examined the medical evidence which was filed by the solicitors for the plaintiffs as result of the order of Goldenberg J. and this evidence, in my view, is relevant both as to liability and quantum. In fact, the plaintiffs' accident reconstruction expert, Clifford Anderson, states in his affidavit filed herein, that these opinions are consistent with one of the factual considerations he used in formulating his opinion in the accident reconstruction report, namely that the nature and extent of the injuries sustained by Jessee, were result of crushing type force. There should be compelling reasons before a trialshould be severed. This has not been established in thiscase. Therefore, for all the above reasons, the application to sever the action is dismissed with costs.
The Defendants applied to sever the issues of liability and damages for purposes of the trial of this matter. The trial was to be held before a jury.HELD: 1)The Court has a general discretion as to severance of issues which must be exercised judicially. 2)Severance should only be ordered when the judge has a serious reason to believe that the trial of the issue proposed to be severed will put an end to the action. 3)The Court accepted the Plaintiff's submission that expert medical evidence would be necessary to establish the cause of the accident since the Plaintiff had suffered brain damage and would be unable to testify. This medical evidence would have to be repeated to establish the Plaintiff's damages if the issues were severed and liability was found. 4)The severance of the issues would deny the Plaintiff the right to have the jury determine his damages. A jury cannot be disassembled and then recalled to conclude the trial of the remaining issues. 5)The Court was of the view that there should be compelling reasons before issues should be severed for trial, but that no compelling reason had been established in this case.