New Alberta Rules of Court: A Client’s Perspective
by: Michael D. Briggs, Toni L. Eckes
On November 1, 2010, the new Alberta Rules of Court are scheduled to come into force, repealing the current Rules of Court. The New Rules represent a dramatic change to the procedural landscape of litigation in Alberta, and everything from timelines to case management has undergone significant and material change.
The main objective of the New Rules is to provide a timely and cost-effective court process for litigants. In order to achieve this objective, the New Rules begin with a foundational rule that is the basis for how the rules are to be interpreted and applied. Specifically, the New Rules are intended to be used: (1) to identify the real issues in dispute; (2) to facilitate the fastest means of resolving a claim at the least expense; (3) to encourage parties to resolve the claim themselves at an early stage in the proceedings; (4) to oblige the parties to communicate in an honest, open and timely way; and (5) to provide effective, efficient and credible remedies.
While not exhaustive (and setting aside the majority of the more technical and procedural rules that have been implemented), some of the changes that may be of particular interest from a client’s perspective are as follows:
1. Limited Purpose Retainers
Another way of assisting litigants and making access to justice more affordable is through partial retainers for lawyers, that is, the "unbundling" of legal services. In other words, a lawyer is not hired for all aspects of a file, but rather assists with only a portion of the case. Under Rule 2.27, a litigant may retain a lawyer for a limited purpose such as conducting examinations for discovery, drafting a particular document, or making a specific appearance in court. Where the latter occurs, the Rule states that the lawyer must inform the court of his/her limited retainer.
2. Standard and Complex Cases
The New Rules require that all actions be categorized as either standard or complex cases. Factors that will be considered by the parties — or by the court — in making this categorization include, among other things, the amount and nature of the claim, the number of parties, and the number of documents.
The classification of a case as either standard or complex will change the entire framework for managing litigation and dispute resolution. For example, with standard cases, the parties are obliged to take various steps (within a reasonable time) such as completing pleadings and participating in at least one of the dispute resolution processes described in the Rules. For complex actions, the parties must, within four months of categorizing the action as complex, agree to a complex case litigation plan that requires the parties to establish specific guidelines and timeframes for completing steps in the action.
3. Service Outside Alberta
Under Rule 11.25, a court application is no longer required in order to serve a Statement of Claim or Originating Application outside Alberta and within Canada. As a result, litigants will no longer have to spend time or money obtaining orders for service ex juris in these situations. However, an application must still be made to permit commencement documents to be served outside of Canada.
4. Mandatory Dispute Resolution Process
The New Rules are built around the premise that disputes should be resolved as soon as possible after they arise, in keeping with the civil justice system objectives of fairness, accessibility, timeliness and cost. As such, Rule 4.16 mandates that part of the parties’ responsibility for case management is the parties’ good-faith participation in a dispute resolution process: either in the private or governmental sectors with an impartial third party or a judicial dispute resolution process (JDR) that allows a judge to attempt to facilitate a resolution between the parties. Accordingly, the New Rules specifically state that a trial date cannot be set by the court unless the parties have engaged in a dispute resolution process, though the court may waive this requirement if the circumstances warrant.
5. Dismissal for Long Delay
One of the most significant changes is the reduced time period for what is commonly known as the "Drop-Dead" rule. Under the Old Rules, the court was required to dismiss an action where five or more years had passed from the time that the last thing was done to materially advance the action. Under the New Rules, this time period has been reduced to two years in order to encourage litigants to move their claims along more expeditiously. It should also be noted that there is a two-year "bridging provision" under the New Rules whereby a court must dismiss an action if the shorter of the following two periods has passed since the last thing was done to significantly advance the action: (1) two years since the coming into force of the New Rules; or (2) the period between the last thing done to significantly advance the action and five years.