What is the test for making a preliminary determination under Rule 25 of the Rules of Civil Procedure?

The first relates to the utility of making the determination otherwise than at a trial. This turns primarily on a cost-benefit exercise to determine whether the likely savings in cost and time justify relaxing the usual rule against fragmenting litigation. The question, as well expressed by Green, J.A. (as he then was) in Miawpukek Band v. Ind-Rec Highway Services Ltd. (1999), 172 Nlfd. & P.E.I.R. 245; N.J. No. 74 (Q.L.)(C.A.) at ¶ 14, is whether there is “some discernable advantage to [making preliminary determinations] rather than dealing with them as part of an overall trial or hearing.” The second main consideration is whether the issue is suitable for determination under Rule 25. The important question is whether the court has an adequate record to make the requested determination.