Canadian Underwriter

Supreme Court of Canada confirms jury trials can’t be split without consent of the parties

July 8, 2010   by Canadian Underwriter

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The Supreme Court of Canada has dismissed an appeal in Linn v. Kovach, upholding the principle that a court cannot split a jury trial without the consent of both parties.
The Ontario Court of Appeal found in February 2010 that jury trials are an exception to the court’s power to split or bifurcate a trial based on its inherent jurisdiction.
In Linn v. Kovach, Aviva Canada insured the plaintiff Kovachs and the defendant Linns in separate and unrelated auto policies.
The action arose based on an accident that occurred on Halloween in 1999, when Pauline Kovach reversed her van from a private lane into a public street.
The Kovachs’ van collided with the Linn’s pickup truck. Andrew Kovach, 8 at the time, suffered a serious brain injury, the subject of an $11.5-million claim.
Both the Linns and the Kovachs submitted jury notices. The Linns wanted to have the trial split, proposing one jury trial for liability issues and a separate jury trial for damage issues. The Kovachs did not consent.
The Supreme Court upheld the Ontario Appeal Court’s finding that the lower court could not split a jury trial without the consent of both parties.
“The practice in Ontario has long been understood to preclude the bifurcation of trials where a jury notice has been served, in the absence of consent,” the Appeal Court found. “To reverse that practice, as the appellants seek, would be a major change in the law…
“Much better that a stark change in practice, such as that proposed by the [Linns] -reversing a long-standing and fundamental right to trial by a single jury – be left to the legislature or the Rules Committee – a responsibility that the Rules Committee has now fulfilled.”

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