Law Times

PAGE 10 FOCUS OctOber 6/13, 2008 • Law times new proportions as the defence bar continues to insist that courts should be more willing to bifurcate trials as a way of saving expense and scarce judicial resources. "Bifurcation is an idea whose time is coming because it benefits litigants specifically and society in general," says Alan Rachlin of Toronto's Rachlin & Wolfson LLP. "I understand the tactical reasons behind plaintiffs' lawyers reasons for keeping a case togeth- er, but modern concerns about access to justice should impact on litigants' rights to have their case decided in one proceeding." As it turns out, Rachlin is defence counsel in Stoiantsis v. Defence bar to courts: be more willing to bifurcate trials T BY JULIUS MELNITZER For Law Times he endless debate over whether an order is final or interlocutory has assumed Spirou, the first decision reported anywhere in Canada that has aris- en from a bifurcated case — one that, perhaps not surprisingly, left the Ontario Court of Appeal to decide whether an issue decided in the case amounted to a final or interlocutory order. Stoiantsis was a medical mal- practice case. sought damages arising from the defendants' treatment of Christos Stoiantsis for a heart condition. Stoiantsis consulted Dr. Chris- The plaintiffs suggested Stoiantsis could be left on another medication, but should be put on Coumadin in the future. Spirou saw Stoiantsis several times. Clinical records indicated he spent a great deal of time dis- cussing Coumadin and advised him that the drug was appropri- ate treatment. Stoiantsis insisted Spirou never discussed the drug. The following winter, Stoian- tos Spirou, his family doctor, and Dr. Rajendra Chetty, his cardiolo- gist, after suffering several episodes of atrial fibrillation. One of the episodes occurred in Arizona, where the family wintered. A physician in Arizona prescribed Coumadin. After a single dose, however, Stoiantsis stopped tak- ing it because a friend persuaded him that it was "rat poison." Bifurcation is an idea 'whose time is coming,' says Alan Rachlin. Stoiantsis returned to Ontario and saw Spirou. His wife told Spirou her husband was counselled to take Coumadin but refused to take it. Spirou referred Stoiantsis to Chetty. In a report to Spirou, Chetty GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS practice restricted to CIVIL LITIGATION, INSURANCE LAW John L. Davis Professional Corporation Richard Hayles R. Lee Akazaki James W. Wilson Jody W. Iczkovitz Jonathan J. Weisman Angela Emerson John L. Davis Counsel: James E. Adamson 20 Queen Street West, Suite 2020 Toronto, Ontario M5H 3R3 Tel: (416) 979-2020 Fax: (416) 979-1285 email: office@gilbertsondavis.com tsis returned to Arizona, where he suffered a debilitating stroke. He then sued Spirou and Chetty. The plaintiffs moved before a master for an order bifurcating the trial by separating the issue of the standard of care from those of causation of damages. The master granted the motion and ordered the standard of care be tried first. The defendants appealed, but also of Justices Marc Rosenberg and Eileen Gillese. "According to the defendants, the facts, the law and the minutes of settlement all support the conclusion that the is- sue determined resolved whether a potential defence was available; the order under appeal [they sub- mit] is therefore final." Epstein agreed with Stevens, relying on the authority of the Ontario Court of Appeal's Ball v. Donais, which elab- orated on Hendrickson v. Kallio, the seminal case on the issue decided by the appeal court in 1932. "Ball extends the reasoning in the parties settled the appeal by agreeing to a trial of the threshold issues of what recommendation Spirou made to Stoiantsis regard- ing Coumadin and whether Spir- ou's notes had been altered. The parties also agreed that if the court found that Spirou had counselled his patient to take Coumadin, the action would be dismissed. On a contrary find- ing, the action would proceed to trial on all remaining issues. The trial of the bifurcated is- sues took nine days, following which the trial judge concluded that Spirou had never recom- mended that Stoiantsis take Cou- madin, and that his notes which referred to such a recommenda- tion were not accurate. The defendants appealed. The plaintiffs moved to quash the ap- peal on the basis that the order appealed from was interlocutory because it did not finally dispose of the defendants' claim. Rachlin argued that the order merely made findings of fact, albe- it important findings, upon which a trial on the legal issues — breach of the standard of care, causation and damages — could proceed. Since the merits remained to be determined, Rachlin submitted, the order was interlocutory. But Kirk Stevens of Lerners LLP's Toronto office, counsel for the defendants, argued the order was final because it finally disposed of a defence. "[The defendants] argue that a defence is a factual situation that, if proven, entitles a defendant to judgment," wrote Justice Gloria Epstein, on behalf of a unanimous bench composed Hendrickson and establishes that even where an order does not fi- nally dispose of the rights of the parties to the litigation, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and 'thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action," Epstein wrote. In her view, this was precisely what happened in the instant case. The procedural history and the minutes of settlement both demonstrated that the purpose of dealing with the threshold matters was to facilitate an early resolution of an issue. Both parties recognized that the defence that the doctors recommended Coumadin, if suc- cessful, would have been a com- plete answer to the claim. "Ball is indistinguishable from the present case," she said. "Sub- ject to appeal, the order disposed of an issue raised by the defendants that deprived them of a substantive right that could have been determi- native of the entire action." The doctrine of res judicata, to which courts often resorted to determine whether an order was final or interlocutory, supported this conclusion. "Even though some orders only partially resolve issues between the parties, if the resolution of the particular ques- tion would give rise to an argu- ment of res judicata, then the order is final despite other issues remaining outstanding," she said. "Had [the trial judge] struck out the relevant paragraphs or por- tions of paragraphs of the joint statement of defence, it would have been clear that the defence was res judicata. Although that was not done, her reasons show the doctrine of res judicata applies to the issues she determined." The result: the court had ju- risdiction to hear the appeal. LT WHAT CAN YOUR ONLINE RESEARCH SERVICE DO FOR YOU? CAN YOU ACCESS MORE THAN 55,000 ACTUAL COURT DOCUMENTS? PLEADINGS, MOTIONS, AND FACTA? www.westlawecarswell.com/youcan Request a demo for a chance to win $2,500 in AMEX gift certificates Untitled-2 1 www.lawtimesnews.com YOU CAN. LitigatorTM With WestlaweCARSWELL, , exclusive to WestlaweCARSWELL, provides access to six topical Court Document Galleries, as well as other materials essential to your litigation practice, including seven Quantum Services, Profiler, Practice Guides, Commentary, Current Awareness resources, and Lawyer and Expert Directories.. AUTHORITATIVE. INNOVATIVE. TRUSTED. 9/30/08 9:44:55 AM

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