Garford Pty Ltd. v. Dywidag Systems International, Canada, Ltd., et al., 2010 FC 581.
The plaintiff, Garford, appealed from an order of a prothonotary allowing bifurcation (separate trials) of the issue of liability from the issues of damages or accounting of profits in an action alleging patent infringement and breach of the Competition Act.
Bifurcation orders are only allowed where the Court is “satisfied, on a balance of probabilities, that bifurcation is more likely than not to result in the just, most expeditious and cost-effective determination of the proceeding.” Factors taken into account when determining whether bifurcation is appropriate include:
(i) The nature of the action and whether issues for the first trial are relatively straightforward
(ii) the extent to which the issues proposed for the first trial are interwoven with those remaining for the second;
(iii) whether a decision from the first trial regarding liability is likely to put an end to the action altogether;
(iv) the extent to which the parties have already devoted resources to all of the issues;
(v) the possibility of delay;
(vi) any advantage or prejudice the parties are likely to experience; and
(vii) whether the motion is brought on consent or over the objection of one or more of the parties.