In Desharnais v. ICBC, the Plaintiff was a motorcyclist who was injured when he hit a median and flipped. He maintained that an unknown motorist had clipped his motorcycle, thereby causing the accident. There were no witnesses to the accident. The Plaintiff brought a claim against ICBC as nominal defendant, given that it was a hit and run case.
Prior to trial, ICBC’S lawyer made an application to sever liability and quantum (amount of the claim) under Rule 12-5(67) of the Rules of Court. ICBC’S lawyer argued that should the Court find no liability against the Defendant, then that would be dispositive of the matter, as it would obviate the need for an actual trial.
The Court discussed the issues that a Court takes into consideration when ruling on a severance application, and noted that severance is the exception, rather than the rule.
The Court was quick to dismiss the application, noting that the affidavit filed in support of the application did not state anything about how the trial would be affected in the event of severance. Further, the Court noted that the Defendant failed to provide any evidence whatsoever as to how severing the issues of liability and quantum would result in a real likelihood of savings in terms of time and expense.
 The defence submits that this matter will be shortened considerably if liability can be determined first in a separate trial. More accurately, what he says is that if he succeeds and the plaintiff fails on the distinct liability issue then there will be no further trial time required. The same could be said of every case where there is a possibility that the plaintiff could be found entirely liable for the accident …
 The affidavit filed on behalf of the defendants says nothing about how this trial will be shortened or in any way affected should a finding of liability go in favour of the plaintiff. In Emtwo, Fenlon J. confirmed that the burden of proof is on the defendants (in this application) to demonstrate that there is a real likelihood of savings of time and expense if severance is granted. The defendants have thus not only failed in their evidence to prove such to be the case, they have failed to even address the issue or to provide any evidence on it at all.
 The defendants’ material simply fails to provide me with an evidentiary basis upon which to properly exercise my discretion, in a proper and judicious fashion, to grant the order sought.