November 30, 2010 by Nanette S. Kufeldt And Lovely Ann N. Rejzek
The new Alberta Rules of Court — proclaimed in force on Nov. 1 — apply to all existing proceedings. The new Rules have been completely reorganized and are now arranged chronologically according to the stage of litigation. Ideally, the justice system will be easier to navigate, not only for lawyers, but also for the insurance industry and even self-represented litigants. As such, all should be aware of the most significant changes in order to effectively manage files in the landscape of the new Rules.
Purpose and intention
The Foundational Rules in Part. 1 set out the underlying philosophy and explains the purpose and intention of the new Rules. Once an action is commenced, parties must ensure they are using public funded court resources effectively and actively attempting to identify the quickest way to resolve a claim with the least expense. This part also acts as a source to assist with interpretation. Undoubtedly, this section will be used to assist with clarification should the need arise.
Commencing and defending an action
There are now only two ways to bring an action: by statement of claim or by originating application. Both are now in prescribed form. Backers are no longer necessary for any pleadings. Individuals may continue to represent themselves unless otherwise provided for in the Rules. The court can also permit another person to assist the self-represented litigant. The person giving assistance may not contravene the Legal Professions Act, meaning they cannot act as an advocate and cannot make representations on their behalf. The assistance given cannot be disruptive and is not allowed if it does not meet the purpose and intention of the Rules.
A statement of defence is also a prescribed form and must be filed within 20 days if the defendant was served in Alberta, a time period five days longer than the old rules.
A statement of defence must be filed within 30 days if the defendant was served outside of Alberta, but within Canada, and within two months if the defendant was served outside of Canada.
Service of Documents
Service of Documents has been substantially changed, and all rules respecting service are now grouped together in Part 11. A statement of claim may still be served personally, but may also be served via “recorded mail.” There are additional rules for service of commencement documents on litigation representatives, partnerships and corporations as well as other parties.
For non-commencement documents, the ambit of service is also wider than previously. Non-commencement documents may be served like a commencement document, electronically, by recorded mail or by a method agreed to by the parties. To serve electronically, the party must “specifically provide an address to which information or data may be transmitted.”
The need for an order for service ex juris within Canada is now eliminated. As long as there is a “real and substantial” connection between Alberta and the claim, the document may be served to any province or territory in Canada without an order. Service outside of Canada will still require an order for service ex juris.
Actions: Standard or complex
Actions are now categorized as standard or complex. In deciding on how to categorize an action, the parties or the court must consider things like the number of parties, documents and complexity of issues, whether expert reports are required and whether a third party claim has been or is likely to be made.
The parties must determine within four months of filing a statement of defence, whether the case is standard or complex. If no agreement is reached, the action will default to Standard. If the litigation had been classified as a standard case at the outset, but later becomes more complex, the court or the parties to the litigation can class the action as complex.
Once a matter is classed as complex, the parties then have fou months to agree on a complex case litigation plan. Rule 4.5 sets out the tasks that must be established like setting the date for completing disclosure of records. Once the parties have agreed to the complex case litigation plan, or an amendment to the plan, the plaintiff will need to file and serve it on all parties.
Affidavits of records
A plaintiff will be obliged to serve an affidavit of records within three months of being served with the first statement of defence.
A defendant will have one month from the date of service of the plaintiff’s affidavit of records to file their affidavit of records. This could greatly shorten the timeframe defendants have to file and serve their affidavit of records. A third party defendant will have three months from the date it files its defence. Of course, it is still open for counsels to agree, between themselves, to extend these time frames.
Disclosure and questioning
There have been some changes in terminology around how information and records are disclosed. Examinations for discovery are now called “questioning”, and discovery of evidence and documents is now referred to as disclosure. As well, the undertaking process is now specifically referred to in the new Rules. Questioning may now be done orally, under oath, or through written questions.
Parties must first file and serve their affidavits of records before they can question another party. The new time limit for service of an appointment on the opposing party is at least 20 days before the questioning date. The scope of who may be questioned has been expanded to include a person who has provided services to a corporation.
Interlocutory matters are now dealt with by filing an Application rather than a Notice of Motion. A notable change is that the timeframe for providing notice of an application to the opposing side has increased from two clear days to five days.
Appeals from a Master
Appeals from a Master will no longer be de novo, but will now be an appeal on the record. However, a judge may permit new evidence to be heard if that evidence could not have been presented to the master, and is significant enough that it could have affected the master’s decision.
The Rules for appeals to the Court of Appeal have not changed.
Dispute resolution (ADR)
Dispute resolution is now a compulsory step in litigation commenced by way of statement of claim, as all parties must attempt a dispute resolution process before obtaining a trial date. The court can waive the request plaintiff to ensure that the action is moving forward so as to not be caught by the much shorter drop-dead rule. Likewise, parties will be able to push for a dismissal of an action much sooner if there is no movement on the action. For matters where no steps have been taken prior to implementation of the new Rules, one should refer to the bridging provision in Rule 15.4. Of course, there are still provisions with respect to agreements for delay, stays and adjournments, which will affect any delay.
Prior to being allowed to schedule a trial date, the parties must provide a certificate indicating that they have performed all the necessary prerequisites, including participating in at least one of the dispute resolution processes described in Rule 4.16.
Parties must also now confirm to the court, at least three months before the scheduled trial date, that they are ready to proceed to trial via a prescribed form, Confirmation of Trial Date. If neither party confirms the date, it will be cancelled.
Pre-trial conferences will no longer be required to obtain a trial date. The Transitional Rules allow for matters in which Examinations for Discovery have been completed under the old Rules, to be set for trial under the new Rules without the need to engage in any dispute resolution pro
The new Rules are meant to provide parties with the means for timely and more efficient resolution of issues. How this will actually work in the field of insurance litigation remains to be determined, as there will certainly be some issues that will need to be further defined through application to the courts. Yet, the possibility of more timely resolution of claims is a bright light on the horizon of this new landscape.
Nanette Kufeldt is an associate and Lovely Ann N. Rejzek is a lawyer with Chomicki Baril Mah. Chomicki Baril Mah is a member firm of the Risk Management Counsel of Canada.