What is the test for severance of liability and damages?

Nova Scotia, Canada


The following excerpt is from Terfry v. Smith, 2006 NSSC 259 (CanLII):

At para. 17 of Nauss v. Rushton Hall J. summarized the relevant authorities and suggested the following criteria in determining whether the issues of liability and damages should be severed: (1) The general rule is to try all issues together. (2) It is a basic right of a litigant to have all issues in dispute resolved in one trial, particularly where the trial is by jury. (3) The issues may be severed where it is just and convenient to do so. (4) The courts should now be more ready to grant separate trials than they used to. (5) In order to determine what is just and convenient, the court must consider the effect of a severance of the issues on all the parties as well as its effect on the court system. (6) The applicant for a severance has the burden of establishing by a preponderance of evidence that it is just and convenient to order separate trials. (7) Only in the rarest and most unique of situations where the trial is to be by jury should a severance be allowed. (8) Severance should not be ordered where significant issues are interwoven such as credibility. (9) Severance may be granted when the issue to be tried is simple. (10) Severance may be granted where there is some evidence that it is probable that the trial of the separate issue will put an end to the action. (11) Severance should be considered where it appears that an application for an interim payment of damages under Civil Procedure rule 33.01 would be justified. [citations omitted.]

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