Introduction
The Court of King’s Bench of Alberta publishes and regularly updates practice notes that set out the practices and procedures for court proceedings. Two such practice notes are Civil Practice Note 1[1] titled “Justice and Applications Judges’ Chambers and Special Applications” (“Civil Practice Note 1”), and Commercial Practice Note 1[2] titled “Commercial Chambers” (“Commercial Practice Note 1”).
The Alberta Court of King’s Bench recently revised these practice notes with changes that came into effect on July 2, 2024. We have summarized these changes below.
Changes to Civil Practice Note 1
Civil Practice Note 1 provides guidance on the practice and procedure of regular and Special Applications for Justice Chambers and Application Judge Chambers. The recent revisions to Civil Practice Note 1 deal with adjournments, the classification of Special Applications, and the filing requirements and deadlines for Judicial Reviews and Civil Appeals.
1. ADJOURNMENTS OF REGULAR CHAMBERS APPLICATIONS
Revised Civil Practice Note 1 increases the timeframe in which parties can request an adjournment online. Previously, online requests for adjournments could only be made if the scheduled date was more than five (5) days away. However, revisions to Civil Practice Note 1 now provide that applications for regular Civil Justice Chambers and in Applications Judge Chambers can be made online in instances where it is more than two (2) days away from the scheduled date. If, however, the scheduled date is less than two (2) days away, the party must still appear in chambers to speak to the adjournment request.
2. SPECIAL APPLICATIONS
The definition of a “Special Application” has slightly changed. Previously, a Special Application was defined as “a contested application before a Justice or Applications Judge other than a family law matter likely to take longer than 20 minutes to argue but not longer than a half day.”[3] However, the revised Civil Practice Note 1 now considers a Special Application to be one that takes more than 20 minutes to not only argue but to also decide. Additionally, the revised definition no longer has an upper limit of half a day.
There are also procedural changes to Special Applications:
- Civil Practice Note 1 now states that the scheduling of Special Applications requires the consent of all parties, unless ordered otherwise by the court;
- While parties are still able to submit oral evidence (provided they have first obtained the court’s permission), an Oral Hearing Order must now be obtained and filed with the court;
- Parties are entitled to rely on a brief filed in support of a previous application in lieu of filing a new brief, provided that all parties and the Court Coordinator are notified in writing prior to the relevant filing deadline. If such timely notice is not provided and a party wishes to rely on a previous brief, the court will hold that the party has not filed a brief for the Special Application and impose the same consequences as if no brief had been filed at all;
- Parties must also notify the Court Coordinator immediately if the matter is settled and confirm the settlement by letter or email, with all parties and the Court Coordinator copied.
3. FILING REQUIREMENTS & DEADLINES
A substantial change to Civil Practice Note 1 is the addition of filing requirements and deadlines for Judicial Reviews and Civil Appeals.
For all Civil Special Applications, Judicial Review and Civil Appeals from the Alberta Court of Justice (with the exception of Applications Judge Appeals), the Applicant must file the applicable commencement document and, if required, an affidavit and/or record of proceedings within the deadlines set out in the relevant statues, regulations or rules. Additionally, the Applicant must file a brief, supporting authorities and any affidavit authorized or required by law with the clerk’s office by 12:00 pm and serve these documents on the Respondent(s) by 4:30pm on the third Friday preceding the week of the assigned hearing date. The Respondent must then file a brief and supporting documents by 12:00 pm and serve these documents on the Applicant(s) and any other Respondent(s) by 4:30 pm on the second Friday preceding the week of the assigned hearing date. It should be noted that these deadlines are not applicable to cases where the appeal court will hear the Judicial Review or Civil Appeal de novo. In such cases, prior to scheduling the hearing, parties need to obtain a procedural order setting out the filing deadlines.
For all other Civil Justice and Applications Judges Special Applications, parties must file and serve all affidavits and other evidence intended to be relied on at the Special Application and complete any cross-examination prior to scheduling a date for the Special Application. The Applicant must fill out a Request Form and it must include a copy of the Application, an estimate of the time required for argument and a list of all the evidence intended to be relied on at the Special Application.
The Applicant in a Special Chambers Application must file the Application, affidavit, any other permitted evidence, brief and authorities with the Clerk’s Office by 12:00 pm and these documents must be served on the Respondent(s) by 4:30pm no later than two weeks from the date on which the Special Application was booked. The Respondent must then file an affidavit, any other permitted evidence, brief and authorities with the Clerk’s Office by 12:00 pm and these documents must be served on the Applicant and any other Respondent(s) by 4:30pm no later than four weeks from the date on which the Special Application was booked.
Under the revised Civil Practice Note 1, the ability to file any supplemental materials, the procedure following the filing of defective or deficient materials, and the consequences of failing to file a brief by the applicable deadline remain the same.
Changes to Commercial Practice Note 1
Commercial Practice Note 1 outlines the scope and booking procedures of the Commercial List. The Commercial List hears commercial matters in Calgary and Edmonton. The recent revisions deal with the matters that may be scheduled on the Commercial List as well as the ability to have matters that are properly in the jurisdiction of Calgary to be heard in Edmonton, and vice versa.
1. MATTERS ELIGIBLE FOR THE COMMERCIAL LIST
The revised Commercial Practice Note 1 expands the matters eligible to be heard on the Commercial List to include all time-sensitive matters under the Business Corporations Act (Alberta),[4] Canada Business Corporations Act,[5] and the Securities Act.[6] In addition, matters related to Norwich Orders, Mareva Injunctions, Anton Pillar Orders, and Freezing Orders under the Civil Enforcement Act[7] can now also be heard on the Commercial List. Under the revised Commercial Practice Note 1, the matters explicitly excluded from being heard on the Commercial List, except in exceptional circumstances, remain the same.
Parties are still able to schedule “such other emergency commercial matters as the Chief Justice or Associate Chief Justice may direct to be booked on the List due to their urgent or time-sensitive nature.”[8] However, parties must now provide a comment in their covering letter outlining the reason for having the matter heard on the Commercial List and provide an estimate of the reading time required by the Justice.
2. GENERAL PROCEDURES
The general procedures for Applications on the Commercial List largely remain the same. However, revised Commercial Practice Note 1 no longer provides for the availability of a Commercial Practice Group Justice on Mondays in Calgary and Tuesdays in Edmonton to deal with urgent matters, scheduling and consent matters, and applications to extend time to file materials for pending motions. In other words, while the Commercial List still sits daily, there is no longer a designated emergency justice to handle such matters on those specific days.
Additionally, the default hearing mode for a matter on the Commercial List is now virtual.
3. MATERIALS FOR USE OF THE COURT
Under the revised Commercial Practice Note 1, the deadline for applicants and respondents to file materials for the use of the court remain the same: 12:00 pm on the Monday preceding the week of the hearing of the Application for the Applicant and 12:00 pm on the Thursday preceding the week of the hearing for the Respondent.
The revised Commercial Practice Note 1 now imposes a 35 page limit on the briefs of Applicants and Respondents, and requires hyperlinks in all briefs, appendices and exhibits.
4. MOVING MATTERS BETWEEN CALGARY AND EDMONTON COMMERCIAL LISTS
The revised Commercial Practice Note 1 now provides a formal process to request a matter properly in the jurisdiction of Edmonton or Calgary to be moved to the other jurisdiction’s commercial list. Before a matter can be moved, the following four conditions must be met:
- There is time available on the other Commercial List;
- The matter is urgent;
- The matter would not require the Justice hearing the matter in the other Judicial Centre to case manage the Action; and
- The Co-Chairs of the Commercial Practice Steering Committee both agree that the matter should be heard on the other Commercial List.[9]
Practical considerations
Any party appearing in Regular Chambers, Special Chambers, or Commercial List Chambers should thoroughly review the revisions made to Civil Practice Note 1 and Commercial Practice Note 1 to ensure that compliance is met.
While the changes may be viewed as relatively minor, adherence to the respective practice notes will ensure that any procedural issues are caught well in advance of the scheduled Application and will avoid unnecessary delay.
Should you have any questions, or have a civil or commercial dispute, please do not hesitate to contact a member of Miller Thomson’s Commercial Litigation group.
[1] Civil Practice Note 1 “Justice and Applications Judges’ Chambers and Special Applications” [CPN1] published by the Court of King’s Bench of Alberta, effective July 2, 2024.
[2] Commercial Practice Note 1 “Commercial Chambers” [Commercial PN1] published by the Court of King’s Bench of Alberta, effective July 2, 2024.
[3] Civil Practice Note 1 “Justice and Applications Judges’ Chambers” published by the Court of King’s Bench of Alberta, effective April 14, 2022 at para 6(b).
[4] RSA 2000, c B-9.
[5] RSC 1985, c C-44.
[6] RSA 2000, c S-4.
[7] RSA 2000, c C-15.
[8] Commercial PN1, supra note 2 at para 1(k).
[9] Ibid at para 30.
