Richard J. Scott

Among Scott's most notable decisions while sitting on the Court of Appeal was in O'Brien v Tyrone Enterprises (2012).[14] In the personal injury case, the plaintiff's lawyers were representing her for a contingency fee and were "not prepared to front the costs of the medical and actuarial witnesses who would be required when the issues of damages were addressed unless the defendant was found to be liable."[15] As the plaintiff's only income was the $7,000–7,400 per year which she received from her disability pension through the Canada Pension Plan, the plaintiff could not cover these costs herself and therefore applied for severance of the civil trial on liability and damages.[16]

Such applications are rarely granted in Manitoba, in accordance with Justice Guy Joseph Kroft's decision in Investors Syndicate v Pro-Fund Distributors Ltd which held that it is the "normal preference of the court ... to hear and determine all issues at one time and to discourage the piecemeal trial of actions."[17] However, Kroft acknowledged that severance may be granted in "appropriate circumstances" and provided a series of considerations that should be weighed by judges.[18] Taking this into consideration, the motions judge, Justice Albert L. Clearwater, overturned the decision of the master and allowed the application,[19] holding that "this is an 'access to justice' issue. Litigants in the economic position of this plaintiff, absent any evidence or suggestion that their claim is frivolous or vexatious or otherwise without merit, have little or no ability to fund the cost of litigation in today's economy."[20]

Scott dismissed an appeal of the severance, citing the "modernization" of the Court of Queen's Bench Rules that took place since Investors Syndicate (including the amendment of rule 1.04(1), under the heading "General principles", to read "These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits") and the "trend, or evolution, in [the jurisprudence of other] provinces towards a more liberal approach to severance" with which he agreed.[21] He wrote:

As we have seen, courts in other jurisdictions have moved decisively away from the view that consideration of financial hardship on a severance application is an error. In those instances where evidence of financial hardship has not resulted in severance being granted, it is often the case that either the plaintiff's impecuniosity was the only factor in its favour, or it failed to demonstrate that it would be beneficial to sever. Here the motions court judge, in the exercise of his discretion, while recognizing the criteria set forth in Investors Syndicate, gave, in the particular circumstances before him, significant weight to considerations of the plaintiff's impecuniosity and the resulting access to justice issue. In doing so, he did not err.[22]