What is the test for a motion judge to determine whether a preponderance of factors favours one party or the other?

Ontario, Canada


The following excerpt is from Soulliere v. Robitaille Estate, 2013 ONSC 5073 (CanLII):

In Aghsani v. Briglio, [2006] O.J. No. 2071, 2006 CanLII 17322 (S.C.J.), Power J. held that the above list of criteria was not exhaustive and the discretion of the motion judge was not confined to consideration of only these questions. He stated (at para. 29): "I agree, that different factors may be given different weight and that, therefore, it would not be a proper exercise of judicial discretion for a court to simply determine whether a preponderance of factors favours one party or the other". In addition, Power J. identified the following additional factor to be considered, namely (at para. 30): . . . the court's increased role in trial management in the sense that the request for bifurcation should not be analyzed only in the context of the opposing parties. The decision should take into consideration the public's interest in the administration of justice. In other words, the issues may, in some instances, transcend the interests of the combatants in the particular case before the court.

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