New pilot project can assist litigants to push slow-moving matters to trial in Alberta

( Disponible en anglais seulement )

11 juin 2024 | Steven T. Robertson, Kira Lagadin

On April 23, 2024, the Alberta Court of King’s Bench announced a new pilot project which allows civil litigants to apply to the Court for leave to set a matter down for trial earlier then might otherwise be allowed pursuant to the Alberta Rules of Court, Alta Reg 128/2010 [Rules], specifically Rule 8.4, which requires a number of pre-conditions to have been met.

Historical Approach

Rule 1.2 of the Rules states that the Rules should be used to “facilitate the quickest means of resolving a claim at the least expense.” Tension arises between this foundational rule and the related object of the Rules, being to ensure that judicial resources are not wasted, in circumstances where civil actions that have been set down for trial are adjourned late because they are not ready to proceed.

Under the previous iteration of the Rules, this tension was addressed by use of a “Conditional Certificate of Readiness” which, at the risk of over-simplification, allowed a trial date to be set while certain steps and deadlines, as specified in the Certificate, were outstanding. If a step was not accomplished by the deadline under the Certificate, the trial date was automatically vacated and an application was required to restore the trial date and extend the deadlines for the remaining steps, failing which the trial date would be lost.

Under the current Rules, this tension has primarily been addressed through Rule 8.4, which requires the parties to certify that all necessary pre-trial steps have been taken before a trial date can be set. In particular, Rule 8.4(3) requires the parties to certify that:

  • All questioning is complete;
  • Expert reports have been exchanged and questioning on the reports is complete;
  • All medical examinations are complete;
  • All undertakings by questioned persons are complete; and
  • All applications related to the action have been disposed of.

Trials are currently scheduled to be heard on dates that are years after the date that the scheduling request was made. This is inherently inefficient as parties who are fully prepared to proceed to trial often must wait multiple years for their trial to start, with memories fading and expert reports becoming out of date in the intervening period. On the other hand, setting down a trial date before all the necessary pre-trial steps have been accomplished risks wasting scarce judicial resources and further delay if the trial must be adjourned because the parties are not ready to proceed by the trial date.

New Pilot Project

The Court of King’s Bench of Alberta is attempting to address the inherent efficiency in the current procedure under Rule 8.4 in part through a new pilot project that provides a procedure for obtaining a trial date for non-family civil actions using the existing Rules, and Rule 8.5 in particular.

Rule 8.5 generally authorizes the Court to set a trial date at the judge’s discretion, as long the pleadings have been closed and 90 days have passed since the deadline to serve the parties’ Affidavits of Records. Litigants do not need to meet the criteria of Rule 8.4(3) in order for a judge to set a trial under Rule 8.5. Therefore, a trial may be scheduled under Rule 8.5 earlier than under Rule 8.4.

While Rule 8.5 has always allowed judges to schedule trial dates when the requirements of Rule 8.4 have not been met, the procedure for making such an application had not previously been standardized and, as such, Rule 8.5 may have been underused.

Under the new pilot project, a party wishing to apply to the Court to set the action for down trial under Rule 8.5, must first serve on every other party a proposed litigation plan and proposed order entering the action for trial, using the new forms contained on the Court’s website. The parties served with these materials then have 10 days to respond to the proposed documents, adding information as necessary.

Applications brought under the new pilot project are heard on the last Friday of each month, commencing May 31, 2024. On hearing the application, the presiding judge is authorized to:

  • Set the action for a trial of specified duration, with procedural directions including an order that the parties follow a litigation plan;
  • Make a procedural order to facilitate the scheduling of a trial date; or
  • Dismiss the application.

For trials scheduled under the new pilot project, the parties are required to confirm that they will be ready to proceed to trial, via Form 39, at least 120 days before the scheduled trial date. Significantly, the consequence of failing to file Form 39 for a trial scheduled under this process is not the automatic vacating of the trial date, but a requirement that the parties attend in Civil Appearance Court or before a regional supervising judge for further procedural directions.

When should a party use this procedure?

The new pilot program will be useful in situations where the parties are cooperative and want to obtain a trial date to resolve a matter as soon as possible. However, it may also be especially useful to litigants in cases where the opposing party appears to be strategically slow-moving or obstructive. This is because one of the parties may apply unilaterally for a judge-scheduled trial, and the applying party does not need to certify that the requirements set out at Rule 8.3(4) have been met. A party that does not respond to the proposed litigation plan or proposed order entering the action for trial does so at their peril, as the Court can and probably will, proceed on the information provided by the Applicant.

The pilot project procedure may therefore be a useful new lever for litigants to pull to force a matter forward. Even if the application is unsuccessful, the opposing party will be required to explain why the matter is not ready for trial when opposing the application, which will force that party to outline its intended next steps, and to provide a timeline which the Court may then enforce. This can help to propel a matter forward, even if a trial date is not set.

The new pilot project will potentially help litigants to schedule trial dates much earlier than the traditional approach under Rule 8.4, particularly in situations where the opposing party is not collaborating to move the matter forward efficiently. The procedure is a welcome addition to the civil litigator’s tool kit.

Should you have any questions, please do not hesitate to contact a member of Miller Thomson’s Commercial Litigation group.

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