Justice will be swift: Alberta’s new streamlined trial process

The Alberta Court of King’s Bench recently announced that as of January 1, 2024, a new streamlined trial procedure for civil and family matters will come into effect.[1] This new “streamlined trial” format has the potential to resolve actions more quickly than the existing, seldom-used summary trial procedure.

What is a Streamlined Trial?

In order to qualify for a streamlined trial, the Court must be satisfied that the following criteria are met:

1. the streamlined trial is necessary for the purpose of fairly and justly resolving the action; and,
2. the streamlined trial 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.[2]

Parties may make an application to the Court for a streamlined trial, or the Court may order or direct it on its own motion.[3]

Under the streamlined trial process, parties will be required to jointly submit a record to “ensure an efficient adjudication.”  This record must include “the real issues in dispute” and “only the relevant and material evidence necessary to resolve the dispute,” amongst other things.[4] Similar to summary trials, streamlined trials will largely involve written, rather than oral, evidence. However, some oral evidence and cross-examination of certain witnesses may be permitted, and expert evidence may be introduced, pending direction of the Court.[5] These changes are anticipated to reduce the amount of evidence that will be presented for each case, resulting in shorter trial duration.

The streamlined trial process is also expected to reduce the amount of time it takes for litigants to obtain a decision from the Court by removing certain pre-trial procedural steps.  For example, the mandatory alternative dispute resolution processes set out in Part IV of the Rules of Court will not apply by default to a streamlined trial process unless otherwise mandated by procedural order, streamlined trial order, or practice note.[6] Further, parties may be able to commence the streamlined trial approach without having to attend for questioning, which is typically the most expensive and time-consuming step in litigation.

Streamlined Trial: A Superior Summary Trial?

To date, the summary trial process has been underutilized; to this end, the Alberta Rules of Court Committee identified two main issues with the summary trial process, both of which it hopes the streamlined trial process will address and resolve.  First, there is no fixed deadline to object to a summary trial as the mode of trial, which allows room for frustrating last-minute objections that can derail the hearing of the summary trial. Second, the Court is permitted to decline to make a decision at the end of the hearing, if it determines that the matter was not appropriate for summary trial. This makes committing to the summary trial process risky because it can result in extra costs and delay to all parties without a tangible result.[7]

The streamlined trial process has the potential to correct these issues. First, parties to a streamlined trial will be required to confirm their attendance three months in advance, which should help to combat last-minute objections.[8]  Further, pre-trial conferences or Rule 4.10 conferences will be mandatory for streamlined trials, which should further assist with reducing late objections.[9]  Finally, any dispute about the mode of trial is to be resolved in a “summary manner” and the Court may impose a penalty on any party who makes an “unjustified” objection to the streamlined trial. This should assist in discouraging parties from arbitrarily objecting to the process.[10] None of these measures applied by default to the summary trial procedure. Such changes should increase certainty to litigants regarding the mode of trial.

Further, and importantly, the new streamlined trial process will require the trial judge to make a judgment on the merits at the conclusion of the trial.[11] Under the summary trial process, trial judges had the option to dismiss the application without judgment.[12]  This new process will, at the very least, ensure that opting for a streamlined trial will not be a fruitless endeavour.

Viable Alternative to Summary Judgment?

It is expected that the standard of proof for a streamlined trial will remain the same as for summary trials, with the plaintiff bearing the burden of proving their action on a balance of probabilities. In contrast, the burden on summary judgment is more difficult, requiring the applicant (whether the plaintiff or the defendant) to demonstrate that there is “no genuine issue requiring trial.” In cases where summary judgment is not practicable for evidentiary reasons, but a full trial is not warranted, the streamlined trial process may be an appropriate legal avenue for either party to consider.

Takeaways

It remains to be seen whether the streamlined trial will be a successful method for swiftly resolving legal disputes. There are reasons to be optimistic, as the changes appear to address concerns arising from the summary trial and summary judgment processes. It is particularly noteworthy that the Court has the power to direct streamlined trials. The degree and frequency to which the Court makes these directions, and the specific procedures it mandates in each matter, will no doubt have a large impact on the adoption of the streamlined trial.

If you would like to discuss the new streamlined trial process, or any civil or commercial dispute, please feel free to contact a member of Miller Thomson’s Commercial Litigation team.

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[1] Order in Council 185/2023, which brings into force Alberta Rules of Court Amendment Regulation, Alta Reg 126/2023 (the “Amended Regulation”).

[2] Ibid.

[3] Ibid, r 8.25(1).

[4] Ibid, r 8.28.

[5] Ibid, r 8.30.

[6] Ibid, r 8.29.

[7] Rules of Court Committee, “Request for Comments 2021-1: Streamlined Trials,” available online: https://albertacourts.ca/docs/default-source/qb/changes-to-the-rules-of-court/streamlined-trial-rules.pdf, note 2 at p 1.

[8] Amended Regulation, supra note 1, r 8.29(5).

[9] Ibid, r 8.29(4).

[10] Ibid, s. 8.27(2)(c).

[11] Ibid, s. 8.31(2).

[12] Alberta Rules of Court, Alta Reg 124/2010, r 7.9(2).