Date: 20071002
Docket: T-605-07
Citation: 2007FC995
Toronto, Ontario, October 2, 2007
PRESENT: Kevin R. Aalto, Esquire,
Prothonotary
BETWEEN:
H-D MICHIGAN, INC. and
HARLEY-DAVIDSON MOTOR COMPANY, INC.
Plaintiffs
and
JAMAL BERRADA and
3222381 CANADA INC.
Defendants
REASONS FOR ORDER AND ORDER
[1]
This Court
is not a rubber stamp Court. Orders of this Court are made only upon an
assessment of the evidence and the application of the appropriate legal
principles of substantive or procedural law. Counsel and users of this Court
are reminded that there must be some evidence to support relief requested from
the Court.
[2]
On this
motion, the parties seek a bifurcation order on consent. The entirety of the written
representations in this matter are as follows:
I.
NATURE
OF MOTION
The Plaintiffs seek an Order
for bifurcation of the action pursuant to Rule 107 of the Federal Courts
Rules, on the terms set out in the draft Order attached as Schedule “A” to
the Notice of Motion.
II.
FACTS
The parties consent to the
issuance of an Order for bifurcation in the form of the draft Order attached as
Schedule “A” to the Notice of Motion.
III.
SUBMISSIONS
In view of the consent of the
parties, the Plaintiffs respectfully submit that the granting of the requested
Order for bifurcation is justified.
IV.
RELIEF
REQUESTED
In view of the foregoing, the
Plaintiffs respectfully request that this Honourable Court grant the relief
requested in the Notice of Motion.
[3]
There is
not one single scintilla of support for the requested bifurcation order other
than that the parties by their counsel have “consented” to the order.
[4]
Bifurcation
orders are the exception not the norm. The bifurcation of liability and
damages, in effect, creates the possibility of two separate trials. This, in
turn, may necessitate using additional judicial time and Court resources and
thereby create additional costs. The Court must be satisfied prior to making
such an order that there is a benefit to separating the two issues into two
separate proceedings.
[5]
In any motion for
bifurcation pursuant to Rule 107 of the Federal Courts Rules, the Court
must take into consideration a number of factors to ensure that such an order
will result in the most just, expeditious and least expensive determination of
the proceedings on its merits. These factors include, but are not limited to:
(i) The
complexity of the issues;
(ii) Whether
the issues of liability are clearly distinct from issues of remedy and damages;
(iii)
Whether the issues of
liability and damages are so interwoven that no time will be saved;
(iv)
Whether a decision
relating to liability will likely to put an end to the action altogether;
(v)
Whether the parties
have already devoted resources to all of the issues;
(vi)
Whether the splitting
of the action will same time or lead to unnecessary delay;
(vii)
Whether the parties
will suffer any advantage or prejudice; and
(viii)
Whether bifurcation
will result in the most just, expeditious and least expensive disposition of
the proceeding.
[6]
Whether there is
consent by all parties is a factor for consideration but only where there is
first and foremost a case made out, at least in the view of the moving party,
that bifurcation is required and beneficial to the case.
[7]
Here there is
absolutely nothing in the Motion Record which assists the Court in
understanding the issues or why bifurcation is required. This is not a
specially managed proceeding. If it were, then the case management Judge or
Prothonotary might very well be able to make the requested order without the
benefit of a more fulsome evidentiary record because of their greater knowledge
of the case. Counsel are operating under the mistaken presumption that because
they consent the bifurcation order should be granted. Counsel have an
obligation, especially in non-case managed cases, to put before the Court the
evidence and arguments which support the requested order and any authorities
which assist the Court in making the determination of whether the order should
be made.
[8]
As there is no evidence
whatsoever of why bifurcating the issues will result in the most just,
expeditious and least expensive disposition of this action, the motion should
be dismissed, with leave to renew the motion on proper materials. However,
rather than simply dismiss the motion at this juncture, counsel are afforded an
opportunity to provide proper materials to the Court in support of a
bifurcation order. In the event counsel do not do so in a timely way, the
motion will be dismissed.
ORDER
THIS COURT ORDERS that:
1. Counsel for the parties may file materials with
the Court on or before October 12, 2007 to support the
requested bifurcation order, failing which this motion is dismissed.
“Kevin
R. Aalto”
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