Kovach v. Kovach et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Goudge, MacPherson and Blair, JJ.A.
• Citation: 2010 ONCA 126,(2010), 261 O.A.C. 190 (CA)
• Date: 09 November 2009
• Subject Matter: PRACTICE,COURTS

Kovach v. Kovach (2010), 261 O.A.C. 190 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. FE.078

Andrew Kovach and Sarah Kovach, minors by their Litigation Guardian, Wayne Kovach and Wayne Kovach, personally (plaintiffs/respondents) v. Pauline M. Kovach, Mackenzie E. Linn and Barry H. Linn (defendants/appellants)

(C50398; 2010 ONCA 126)

Indexed As: Kovach v. Kovach et al.

Ontario Court of Appeal

Goudge, MacPherson and Blair, JJ.A.

February 18, 2010.

Summary:

The plaintiffs sued the defendants Kovach and Linn for damages for personal injuries suffered in a 1999 motor vehicle accident. The plaintiffs and the Linn defendants delivered jury notices. The Linn defendants moved for a bifurcation of the trial so that liability would be determined first.

A Master of the Ontario Superior Court dismissed the motion. The Linn defendants appealed.

The Ontario Superior Court, in a decision reported [2008] O.T.C. Uned. 884, allowed the appeal. The plaintiffs appealed, with leave.

The Ontario Divisional Court, in a decision reported 248 O.A.C. 59, allowed the appeal and restored the Master's decision. The defendants appealed, with leave.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 10

Stare decisis - Authority of judicial decisions - What constitutes obiter dictum - In Elcano Acceptance Ltd. et al. v. Richmond et al. (1986, Ont. C.A.), Morden, J.A., indicated that the power to bifurcate a civil trial existed as part of the inherent jurisdiction of the court - Morden, J.A., then added the following "clarification": "It has been held that the power may not be exercised where one of the parties has served a jury notice" - The Ontario Court of Appeal held that the "clarification" was not obiter dicta - "An expert in procedural matters, Justice Morden was not given to discursive comments" - It was necessary for him to state the exception to make the main proposition accurate - The "clarification" was essential to his reasoning process, and therefore part of the ratio decidendi of the decision - See paragraphs 15 to 18.

Practice - Topic 5107

Juries and jury trials - Right to a jury - Separation of issues heard by jury - [See Practice - Topic 5204 ].

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - The plaintiffs sued the defendants Kovach and Linn in the Ontario Superior Court for damages for personal injuries suffered in a 1999 motor vehicle accident - The plaintiffs and the Linn defendants delivered jury notices - The Linn defendants moved for a bifurcation of the trial so that liability would be determined first - They proposed that the trials of the liability and damages issues be dealt with by different juries - The Ontario Court of Appeal affirmed the dismissal of the motion - Absent statutory or rules-based authority, the Superior Court did not have jurisdiction to order bifurcation where there was a valid jury notice in place and the parties did not consent - See paragraphs 1 to 43.

Cases Noticed:

Duffy v. Gillespie et al. (1997), 105 O.A.C. 283; 36 O.R.(3d) 443 (Div. Ct.), refd to. [para. 8].

Carreiro et al. v. Flynn et al. (2005), 195 O.A.C. 315 (Div. Ct.), refd to. [para. 8].

Elcano Acceptance Ltd. et al. v. Richmond, Richmond, Stambler & Mills (1986), 16 O.A.C. 69; 55 O.R.(2d) 56 (C.A.), consd. [para. 8].

Shepley v. Libby McNeil & Libby of Canada Ltd. (1979), 23 O.R.(2d) 354 (Div. Ct.), refd to. [para. 8].

General Refractories Co. of Canada Ltd. v. Venturedyne Ltd. et al., [2001] O.T.C. Uned. 209; 6 C.P.C.(5th) 329 (Sup. Ct.), refd to. [para. 12].

Bourne v. Saunby (1993), 23 C.P.C.(3d) 333 (Ont. Gen. Div.), refd to. [para. 12].

Stelco Inc. et al., Re (2005), 196 O.A.C. 142; 75 O.R.(3d) 5 (C.A.), refd to. [para. 25].

Ship Leonor, Re, [1917] 3 W.W.R. 861 (B.C. Prize Ct.), consd. [para. 27].

R. v. Breckner (1983), 6 C.C.C.(3d) 42 (B.C.C.A.), consd. [para. 27].

Ashmore et al. v. Corporation of Lloyd's, [1992] 2 All E.R. 486; 145 N.R. 344 (H.L.), refd to. [para. 29].

Woodglen & Co. v. Owens, [1995] O.J. No. 1360 (Gen. Div.), refd to. [para. 29].

Waller v. Independent Order of Foresters (1905), 5 O.W.R. 421 (Div. Ct.), consd. [para. 39].

Blanchette v. Squires - see Blanchette v. Forget Estate et al.

Blanchette v. Forget Estate et al., [2009] O.T.C. Uned. J45; 76 C.C.L.I.(4th) 304 (Sup. Ct.), refd to. [para. 40].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 108(1) [para. 24].

Counsel:

Alan L. Rachlin, for the appellants;

Kirk F. Stevens, for the respondents.

This appeal was heard on November 9, 2009, by Goudge, MacPherson and Blair, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Blair, J.A., and released on February 18, 2010.