Introduction
Effective January 1, 2024, Alberta’s streamlined trial process under Rule 8.25 of the Alberta Rules of Court will replace summary trials.[1] This reform is potentially significant for businesses seeking efficient and cost-effective ways to resolve disputes – provided your matter is appropriate for resolution by way of streamlined trial.
In the recent decision of Hou v. Canadian North Inc, 2024 ABKB 549 (“Hou”), the Alberta Court of King’s Bench analyzed how an application for a streamlined trial will operate under the “new” Rule 8.25 and clarified the test for determining when a streamlined trial will be appropriate.
Background
Streamlined trials are designed to simplify litigation for cases that do not require full-length trials. The goal is to reduce procedural steps, minimize costs, and deliver quicker outcomes for parties, making this an attractive option for businesses facing moderate-value and lower-complexity disputes.
The Notice to the Profession and Public #2023-02 (“NPP”) outlines the new streamlined trial process, including various procedural and evidentiary guidelines. The NPP also details the types of cases that will often be suitable for the streamlined trial process, namely:
- actions for the recovery of a liquidated sum;
- actions for the recovery of real or personal property;
- actions that depend primarily on the interpretation of documents;
- actions for damages for personal injury where the damage award would likely be under $100,000; and
- wrongful dismissal actions.[2]
The Test for Streamlined Trials
Rule 8.25 sets out a two-part test for determining whether a streamlined trial is appropriate. The applicant must show both necessity and proportionality:[3]
8.25(1) The Court, on application by a party or on the Court’s own motion, may order or direct that a court action be resolved by a streamlined trial if the Court is satisfied that
(a) it is necessary for the purpose of the action to be fairly and justly resolved, and
(b) it is proportionate to the importance and complexity of the issues, the amounts involved and the resources that can reasonably be allocated to resolving the dispute
The Rule further provides that:
8.25(3) A streamlined trial shall not be considered as a disproportionate process solely because
(a) issues of credibility may arise,
(b) some oral evidence may be required at the trial,
(c) cross‑examination of some witnesses may be required, or
(d) expert evidence may be introduced.
In other words, a streamlined trial can be appropriate despite the presence of any one of the factors in Rule 8.25(3)(a)-(d).
The Court’s Analysis in Hou
Necessity
A streamlined trial must be “necessary for the purpose of the action to be fairly and justly resolved”.[4] Necessity need not be established “beyond a reasonable doubt or to a certainty, but only on a balance of probabilities”.[5]
For a streamlined trial to be necessary, a judge must conclude that a streamlined trial is the only means of achieving a fair and just resolution of the matter.[6] It is not enough for a streamlined trial to have the potential to achieve a fair and just result, nor is it enough to show that a streamlined trial is one way of achieving a fair and just result.[7] The term necessity “imports exclusivity, the identification of the single means of achieving the fair and just result”.[8] Practically, necessity could be established by showing “that an action can be fairly and justly resolved by streamlined trial but not by the ordinary trial process”.[9]
Necessity must be assessed in relation to the particular action.[10] Factors relevant to this analysis include:
- Whether, on the basis of the R 8.27 materials, the anticipated record would be sufficient to permit a fair and just resolution of the action;
- Factors relevant to establishing the facts (e.g. number of potential witnesses, likely duration of in-court evidence);
- Legal doctrines which may narrow or constrain argument (e.g. presumptions, corroboration requirements);
- Factors relevant to the course of the litigation (e.g. delay predating the streamlined trial application or delay that would be occasioned by a full trial); and
- Any urgency in obtaining a resolution.[11]
A streamlined trial may be found to be necessary if it would:
- Create a more efficient process by eliminating steps and reducing overall delay;
- Result in a more cost-effective process for the parties;
- Enhance the administration of justice by making more efficient use of court resources and provide litigants with a more accessible and timely resolution;
- Result in a more sharply focused process and elimination of complexities (in the form of interim applications which do not bear on the ultimate resolution of the real issues); and/or
- Simplify the proceeding to make it easier for parties to assess strengths/weaknesses of their positions, and thereby potentially reach resolution without need for a trial.[12]
A streamlined trial may also be necessary if it would be unjust to require the parties to proceed to a full trial, given the value and complexity of the dispute.[13]
Proportionality
A streamlined trial must also be “proportionate to the importance and complexity of the issues, the amounts involved and the resources that can reasonably be allocated to resolving the dispute”.[14]
- Proportionality – Issues & Amounts
Justice Renke first analyzed proportionality with respect to the issues and amounts involved in an action. On this point, proportionality “may be missed by excess or defect”.[15] In other words, a streamlined trial may be disproportionate if it provides insufficient procedural mechanisms to address, e.g., the complexity of the issues involved.[16] Similarly, a full trial may be disproportionate if it would impose excessive procedural or expense burdens on the parties given, e.g., simple legal issues or a low claim amount.[17]
- Proportionality – Resources
Next, Justice Renke analyzed proportionality with respect to “resources that can reasonably be allocated to resolving the dispute”.[18] Here, “resources” includes the time and money of the litigants, but also the publicly funded Court resources.[19] Justice Renke’s analysis focused largely on the latter.
A full trial may be disproportionate if it imposes excessive burdens on court resources given, for example, the issues and amounts at stake.[20] However, because streamlined trials are decided largely on the written record, a streamlined trial can also impose excessive burdens on court resources. If the judicial review of the written record would result in a greater expenditure of court resources than a full trial, a streamlined trial may be disproportionate.[21] While a streamlined may save two or three days of trial time, that savings could be more than offset by the time the judge must spend reviewing the written record.[22]
Features of Actions Inappropriate for Streamlined Trial
Justice Renke also identified various features which, if present, may make an action inappropriate for a streamlined trial:
- The action involves significant disagreements respecting facts and records, or the scope of agreed facts is slim;
- The action cannot be fairly and justly resolved primarily on written evidence, with only brief and limited in-court examination and cross-examination; and/or
- The issues cannot be laid out and argued within the limits set out in the NPP (which are a 5-page opening statement, 15-page closing statement, and 15 minutes for closing argument).
Application to the Facts
Justice Renke, in applying the above law to the facts of Hou, found that nearly all of the factors analyzed weighed against necessity and proportionality. Of note, the scope of agreed facts was limited,[23] there were significant issues of credibility,[24] and the documentary record was large.[25] Ultimately, it was determined that a streamlined trial would not permit a fair and just resolution of the issues, and the Plaintiffs’ applications were dismissed.[26]
Takeaways
The analysis and test set out in the Hou decision set a high bar to meet in order to succeed on a streamlined trial application. Necessity will be particularly difficult for future applicants to prove, given that they must show that a streamlined trial is the sole means to achieve a fair and just resolution.
It is notable that, of the four reported Court of King’s Bench decisions on streamlined trial applications, only one application was successful,[27] and in that case, the parties had previously agreed that summary trial was appropriate (prior to the Rules amendment).[28]
In general, a streamlined trial will likely be suitable where the issues are straightforward and limited in number, the claim is for a low amount (relatively speaking), and limited in-court testimony is required. A streamlined trial is unlikely to be suitable where significant in-court testimony is required, the issues are numerous and/or complex, or the evidentiary record is large. Of course, each case must be assessed individually, according to its own facts.
If you or your organization require assistance or advice regarding a streamlined trial application, please do not hesitate to contact a member of our Commercial Litigation group. Our team of litigation experts can help to explore your options and ensure your legal strategy is as efficient and impactful as your business.
[1] See Alberta Rules of Court Amendment Regulation, Alta Reg 126/2023, s. 11, as set out in Order in Council 185/2023.
[2] Kenneth Nielsen & D. Blair Nixon, “Notice to the Profession and Public: Streamlined Trial Process – Civil (Non-Family) Actions” (22 December 2023), online: Alberta Courts (pdf) <albertacourts.ca/docs/default-source/qb/npp/notice-to-the-profession-and-public-streamlined-trial-process-family-actions.pdf?sfvrsn=3bfa2c82_4>.
[3] Alberta Rules of Court, Alta Reg 124/2010, R 8.25(1) [“Rules”].
[4] Ibid.
[5] Hou v. Canadian North Inc, 2024 ABKB 549 at para 19 [“Hou”].
[6] Ibid at para 19.
[7] Ibid at para 21.
[8] Ibid.
[9] Ibid at para 22.
[10] Ibid at para 23.
[11] Ibid at para 24.
[12] Ibid at para 25, citing Arsenault v. Big Rock Brewery, 2024 ABKB 387 at para 22 [“Arsenault”].
[13] Ibid.
[14] Rules, supra note 3.
[15] Hou, supra note 5 at para 29.
[16] Ibid.
[17] Ibid.
[18] Ibid at para 30. See Rules, supra note 3.
[19] Ibid at paras 31-32.
[20] Ibid at para 33.
[21] Ibid at paras 34-35.
[22] Ibid at para 37, citing Arsenault, supra note 12 at para 32.
[23] Ibid at para 59.
[24] Ibid at para 75.
[25] Ibid at paras 83-85.
[26] Ibid at paras 93 and 97.
[27] Arsenault, supra note 11; Moore v. Turner, 2024 ABKB 435 [“Moore”]; Bailey v. Northern Alberta Institute of Technology, 2024 ABKB 549; Hou, supra note 5.
[28] See Moore, supra note 27 at para 26.
