Litigating in Slices – Severance Issues on Summary Trial

Severance is often considered by the court in a summary trial application. Rule 12-5 (67) provides the Court with the discretionary authority to determine if severance is appropriate:

Trial of one question before others

(67)       The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

In Edward Jones v. Mirminachi, 2011 BCCA 493 (CanLII) it is noted that when “an issue” is being tried rather than the whole case “litigating in slices” can occur and this may become a hindrance to the “just, speedy and inexpensive determination” of the dispute “on its merits”. However, if there is sufficient evidence to determine the severed issue, the alleged problem of litigating in slices disappears. KCC 264 Holdings Inc. v. Circadian (Atkins 2010) GP Ltd., 2014 BCSC 1183 (CanLII)

A review of the test pertaining to severance is helpful.

Severance as it relates to personal injury law is common when a party seeks a final order on the issue of liability only. The principles governing an application for severance have been confirmed in numerous authorities. For example, in Burg Properties Ltd. v. Economical Mutual Insurance Company, 2013 BCSC 209 (CanLII), Madam Justice Gerow said at para. 27 outlined a two-part test:

[27]  There is authority for the proposition that in a summary trial application where a party seeks to proceed only on liability, a two step approach should be followed: the first step is to determine whether there should be severance, and the second step is to determine if a summary trial on the issue of liability is appropriate: Chun v. Smit, 2011 BCSC 412 (CanLII) at paras. 8-9. In Chun, the court stated that the test for severance is whether there are extraordinary, exceptional or compelling reasons for the severance. A compelling reason to order severance is a likelihood of a significant savings in time and expense realized by a summary trial: Bramwell v. Greater Vancouver Transportation Authority, 2008 BCSC 1180 (CanLII) at para. 12.

Reference is made in K.M.W. v. M.D.W., 2016 BCSC 228 (CanLII), on factors the Courts will consider in severing an issue for summary trial purposes.

In Nguyen v. Bains, 2001 BCSC 1130 (CanLII), Martinson J. summarized some of the jurisprudence under former British Columbia Rule 39(29):

 [11] Courts have considered the question of when some issues should be tried before others. These are some of the points that have been made:

• A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.

• Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.

• Severance is most appropriate when the trial is by judge alone.

• Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.

• A party’s financial circumstances are one factor to consider in the exercise of the discretion.

Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge

Also read more about severance in a recent 2018 decision Oviatt v. Masi, 2018 BCSC 930 (CanLII) 

[88]        As explained at paras. 8–9 of Chun v. Smit, 2011 BCSC 412 (CanLII), when one or more defendants in a civil action applies for summary determination under Rule 9–7 with respect to only one aspect of the case, a two-fold analysis is required:

… If a trial of an issue is found to be an appropriate way to proceed, it may be tried under Rule 9–7, if Rule 9–7 itself is properly applicable.  Where a party seeks to proceed on only part of a case under Rule 9–7, the first question is whether there should be severance at all, and the second is whether Rule 9–7 is appropriate …

The test for severance is … whether there are “extraordinary, exceptional or compelling reasons” for severance of liability from quantum.

[Emphasis added.] See also: para. 21 of Chun v. Smit and Element v. Del Mar, 2012 BCSC 868 (CanLII) at para. 98.

 

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