The alarm bells are sounding with the official legislative approval and printing of the new Alberta Rules of Court in the August 14, 2010 edition of the Alberta Gazette. The reformulated Rules, which had not been comprehensively updated since 1968, are in force as of November 1, 2010. Arriving at the new Rules was an intensive and exhaustive process involving over nine years and countless hours of research and consultations with the legal community and the public. Legal practices governing civil disputes will change in significant ways and an adjustment period should be anticipated as everyone gets used to the new Rules and as procedures and case law relating to these Rules develop.
Reasons for Change
The new Rules were created to address 3 primary issues:
- The perception that the court system is difficult to use, time consuming and cost prohibitive;
- The Rules are long, disorganized and not consistently applied or enforced; and
- The Rules are out of date and no longer reflect modern practice.
To this end, the new Rules address these issues respectively as follows:
- There is a clear, step-by–step dispute resolution process with deadlines set by the parties. The goals are to minimize the dollars and time of litigation and maximize procedural transparency;
- The new Rules are logical, well arranged and written in plain English. It is now easy to find and follow the right rules; and
- The new Rules blend core principles of procedural justice with the best contemporary, legal and administrative practices into a single, comprehensive, consistent procedural code.
Overall, the new Rules are meant to improve access to justice. They are designed so that lawyers and self-represented litigants alike are able to understand and effectively utilize the various procedures.
Some Key Changes
Mandatory Participation in a Dispute Resolution Process
A significant change in litigation management is that before a trial date can be obtained, parties must participate in good faith in a non-trial dispute resolution process. The dispute resolution processes permitted under the new Rules are broadly defined and include methods such as judicial dispute resolution and involving an impartial third person (ie: mediation).
The court may waive this requirement but only if the parties have already utilized a dispute resolution process prior to the initiation of the claim, the nature of the claim is such that agreement is unlikely to be achieved or a decision from the court is necessary or preferred in the circumstances.
The "Drop Dead" Rule
Another major change is that the rule dealing with delay in an action, also known as the "drop dead rule", has changed from 5 years to 2 years. If 2 or more years has passed since the last thing done that significantly advanced the action, the court is required to dismiss the claim. This is a substantial shortening of the existing drop dead rule and should operate to keep cases moving.
Many of the key changes make it easier for the self-represented litigant to conduct an action in court without being tied down by technicalities. The new Rules specifically provide that an individual may represent himself or herself in court and state that a party may use a lawyer for limited purposes during the course of an action. In addition, technicalities which might previously have resulted in a claim being struck or amendments being required have been eliminated. For example, the new Rules now state that a sole proprietor may sue or be sued using their trade name and clarify the procedure for disclosure of a sole proprietor's legal name.
Previously, the pleadings filed were essential to the relief that the court could grant. The new Rules change this and give the court wide discretion to grant any remedy or relief provided for in the Judicature Act and applicable statutes, whether or not the remedy is expressly requested in the pleadings. Presumably, the purpose of this rule change is to ensure that the justice meted out is appropriate for the claim. The practical application of this new rule might create difficulty for a party in meeting the case brought against it if there is uncertainty in the remedy being sought. Hopefully, in using their discretion, judges will alert counsel and litigants to possible remedies that are being considered so that the parties will have adequate opportunity to respond, however this is not specifically required by the Rules.
Litigation Management and Timelines
This division contains one of the most significant changes in the Rules. The Rules require the parties to manage the dispute and plan to resolve it in a timely and cost effective way. Therefore at the commencement of each action the parties must determine whether a case is standard or complex. Target dates are then set by the parties for completion of certain stages of the litigation.
Parties in simple cases are required to complete pleadings, the disclosure of information component, at least one of the dispute resolution processes described in the Rules (unless the requirement is waived) and apply for a trial date within a reasonable time considering the nature of the action. Complex cases require the formal creation of a complex case litigation plan which will establish dates upon which the real issues in dispute will be identified, disclosure of records and questioning on those records will be completed, when experts' reports and rebuttal and surebuttal expert reports will be served, when any reports of health care professionals will be obtained and finally, an estimated date to apply for a trial. The complex case litigation plan also must outline the agreed upon protocol for the organization and production of records. The plan must be filed by the Plaintiff and served on all parties. If needed, the court can assist in establishing a complex case litigation plan as well as the management of litigation to keep the claim progressing in a timely fashion.
Preparation of Formal Judgments
Previously there were no timelines relating to the preparation of formal judgments or orders. The new Rules now provide that the successful party is responsible for serving a draft judgment or order within 10 days of the pronouncement with the opposing party given 10 days to approve or reject the draft. If the draft is not expressly approved or rejected, it may be signed and entered. If the content cannot be agreed upon, the court may resolve the terms of the judgment or order.
The Rules also require that the judgment or order be entered within 3 months, failing which the court's consent is required. Again this assists the pace of litigation and precludes the unsuccessful party from sitting on a judgment or order in the hope that they can come up with an appeal strategy while stalling the successful party.
Notice of Motions to obtain direction or resolve issues arising during the course of litigation are now called "Applications". Applications are now returnable on 5 days notice rather than 2 days, unless the notice is dispensed with. From a practical standpoint, 5 days is more realistic as most motions were heard in that time frame or longer in any event.
Applications that are heard with only one party appearing must be recorded, unless a judge otherwise orders. If required, this will allow the party who was not present to understand the submissions that were made and make it easier to appeal if they so desire.
A significant change is that an appeal from a master's order to a judge is now an appeal on the record. The old Rules provided that an appeal of a master's order was to be de novo, in essence giving the applicant a second kick at the can or the opportunity to bring in other evidence that was not heard in the first instance. This change will make parties put their best foot forward in the first instance and help to avoid frivolous and unnecessary applications.
Service is simplified and allows for both personal service and registered mail for most entities. In addition, an order for service outside of the jurisdiction is no longer necessary and the claimant must only show that there is a real and substantial connection between Alberta and the facts of the case, or as permitted by court order if outside Canada. The document must disclose the facts and grounds for service outside Alberta and, if served outside Canada, a second document must accompany the claim setting out the grounds. The Defendant who is served outside Alberta can still apply to set aside service before filing a Defence and this will not be taken to be an acknowledgement that the court has jurisdiction with respect to the claim.
The new Rules make some broad and comprehensive changes to the management of civil disputes. It is expected these changes will have the desired effect and will go some way to making the litigation process easier, cheaper and more user friendly. The tools provided by the Rules are certainly available to achieve these objectives. Parties engaged in disputes and society at large should benefit from the increased access to justice and certainty in how their case will progress. There will no doubt be a transition phase that will bring with it some uncertainties and headaches for counsel, clients and the courts but these issues should work themselves out in due course, resulting in a more refined and efficient system.