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Rules of Court Amended September 1, 1998
Recent changes to the Alberta Rules of Court are intended to simplify certain procedures, expedite the determination of issues and the holding of trials, and provide better compensation for costs to the successful litigant (or impose a greater penalty on the unsuccessful litigant). The following are some of the changes:
Expert Reports - Must be delivered to the other party at least 120 days before trial, rather than 10 days as previously required. This earlier disclosure should be helpful in helping the parties assess the issues facing them, and may lead to earlier settlement.
Summary Trials - May be requested on 21 days notice by any party, on any issue or generally, based upon affidavit evidence, answers to interrogatories, evidence of any witness taken under oath, and other available documents and admissions. The applicant may not file any further evidence, except in rebuttal. The respondent must at least seven days before the hearing, give a reply specifying the matters on which it intends to rely.
On or before the hearing, the judge may order the delivery of further evidence, order the examination of any person, fix time limits, require the filing of briefs, adjourn the matter, or dismiss the application on the grounds that the issues are not suitable for disposition by summary trial. Oral evidence may be presented at the hearing, with leave of the judge.
It must be noted that affidavit evidence must be based on facts within the personal knowledge of the deponent and not on information and belief.
At the hearing, on being satisfied that there is sufficient evidence to make a decision, and irrespective of the amounts involved, the complexity of the issues and the existence of conflicting evidence, the judge may grant judgment, either on an issue or generally. Alternatively, the judge may rule that it would be unjust to decide the issues in a summary trial.
If a judgment is granted, the judge may impose terms respecting enforcement, including a stay of execution, and costs may be awarded.
If the matter is to go to regular trial, the judge may order that the proceedings be expedited, and may give any directions deemed appropriate. Unless the parties consent, the same judge cannot preside at the regular trial.
If the judge does not grant judgment on an issue, the matter must go to regular trial and no further application may be made for summary judgment on that issue.
Expedited Trials - In claims of $75,000 or less, whether for a debt or for damages, the parties must, within 30 days after service of the Statement of Defence, (a) file and serve a simplified affidavit listing those documents which are directly relevant to the issue, and (b) name those persons who may reasonably be expected to know about matters in issue. Further, each party must, upon request and payment of reasonable photocopying charges, provide true copies of the producible documents.
Examinations for discoveries must be limited to six hours unless consented to in writing by all parties or directed by the court. All parties being examined must make all reasonable efforts to inform themselves of the matters in issue before being examined. Rather than conducting an oral examination, a party may examine another party by issuing written questions not to exceed 1000 words.
All motions must be made within six months after the close of pleadings. Any costs awarded against a party who makes an unnecessary or ill-founded motion or misses a deadline will be payable immediately (as opposed to the end of the trial).
A witness's evidence may be given at trial by affidavit, provided that it has been served on all parties not less than 90 days before the trial and no objection has been made. However, the affidavit cannot be filed until cross-examination thereon has been completed or waived, and the transcript of cross-examinations must also be filed. All affidavits must be confined to facts within the deponent's knowledge (hearsay is not admissible).
Once the examinations have been completed (even if undertakings have not been answered), any party may apply for a pre-trial conference, which may be held before a judge, master or referee. The judge may order that the plaintiff produce, at least 21 days before the conference, a statement of facts it seeks to establish and the issues in dispute; the defendant will then have seven days to file an answer. Facts not disputed are deemed to be admitted.
If the matter goes to trial, each party must deliver, at least seven days before the trial date, a written statement in point form of the major facts and law upon which it is relying. Unless the court otherwise permits, the statement must not be longer than five pages.
Appeals may only be made from a final order or judgment on a substantive issue, such as an order to strike out a pleading; an order to stay an action, or an order for dismissal.
Court Costs - The schedule of Court Costs has been increased substantially for all actions now before the court
Some examples of the increase in the amount of costs include:
Old New
Schedule Schedule
$15-$35,000 default judgment $375 $500
$15-$35,000 settled after discoveries $1,965 $4,740
$250,000 judgment after trial $8,555 $28,400
These costs do not include the double costs to which a successful party is entitled following the service of an offer of settlement or judgment.
Conclusion - THE NEW RULES HAVE THE POTENTIAL TO REDUCE THE NUMBER OF PRE-TRIAL PROCEDURES, AND THE INCREASED SCHEDULE OF COSTS SHOULD ENCOURAGE LITIGANTS TO AVOID DELAYING TACTICS. WHETHER OR NOT THEY HAVE THE INTENDED EFFECT WILL DEPEND GREATLY ON THE ACTUAL APPLICATION OF THE RULES BY THE JUDGES.