As you are no doubt aware, the long anticipated new Alberta Rules of Court are scheduled to come into force on November 1, 2010. This update is the first of a series of updates that will be circulated as we move towards implementation. BLG will also provide a comprehensive overview of the changes in a Fall seminar, and will provide you with further information on the particulars of that seminar as we move towards the Fall.
A draft of the new Rules was released last week and is available for viewing at: http://www.albertacourts.ab.ca/Home/Spotlight/tabid/310/Default.aspx. Please note that this version is still in draft and is subject to further revisions prior to November 1, 2010.
Underlying Structural and Interpretive Changes:
The new rules consist of 15 parts organized in chronological order reflecting the progress of a law suit, starting from foundational rules and the parties to litigation through to appeals. This will make it easier to locate the relevant rules.
The foundational rules (Part 1) outline how the new rules are to be interpreted. This is a significant departure from tools previously used to interpret the rules, such as the Interpretation Act and case law. The intention is to render all previous case law irrelevant under the new rules, even where the case interprets a rule with similar wording. Practically, only time will tell whether that intention is met.
The purpose of the rules is expressly stated: to provide the means to “fairly and justly” resolve claims through a Court process “in a timely and effective way.” Meaning must be ascertained from the text, in light of the purpose and intention of the rules, and in the context in which a particular rule appears. For example, the headings in the new rules will have legal effect and are intended as interpretation aids.
The following highlights some major changes. Further updates will be provided as more information becomes available:
- Originating documents are either originating applications or statements of claim.
- A large number of forms are now prescribed including for a statement of claim and statement of defence. Some (e.g. formal offers) will be very different.
- Service of an originating document is by personal service or “recorded mail” (a mail or courier service by which the recipient must acknowledge receipt). Electronic service is permitted for all other documents.
- No Order is required for service ex juris.
- Backers will no longer be required.
- All time periods are standardized. Time periods are either 24 hours, 5, 10 or 20 days or are measured in periods of months.
- A notice of motion must be served 5 days prior to the motion, rather than 2 clear days.
- For a standard action, the plaintiff’s affidavit of records is due within 3 months. The defendant’s affidavit of records is due one month after receipt of the Plaintiff’s affidavit.
- Some form of ADR is now mandatory, unless excused by the Court. Private sector ADR qualifies.
- Examinations for discovery are called “Questioning.” Undertakings are now codified in the Rules.
- A pre-trial conference is no longer required.
- Draft orders must be prepared within 10 days of the Court granting the order, and must be entered within a further 10 days.
- There will no longer be a hearing de novo on an appeal from the decision of a Master. It will now be a appeal on the record.
- The drop-dead (old rule 244.1) period is now two years.
Part 15, the transitional provisions, specifies that the new Rules of Court apply to any proceeding not concluded prior to the coming into force date, regardless of when the proceeding was commenced.
If the time period is different under the new rules, then a) time runs from the event specified in the new rules; or b) time runs from November 1, 2010; whichever event comes first.
- “Drop Dead” Rule (Formerly Rule 244.1)
- If, under the old Rules, the limitation date is January 30, 2013, the limitation date under the new Rules will be November 1, 2012, as the event that comes first.
- If, under the old Rules, the limitation date is October 1, 2011, that date is still the effective date because it will occur before November 1, 2012.
The implementation of these new Rules will pose challenges for lawyers, staff and clients as we will need to adjust to an entirely new procedural code. The new Rules will modernize the existing court procedures to better reflect the existing practices, and should promote more efficient use of the Court process.