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Alberta Summary Trial Rules

Year: 
1998
Description: 

Alberta Queen's Bench Rules of Court setting out simpler procedure for adjudicating an entire action or one or more issues suitable for summary trial determination.

Status: 

Permanent implementation

Jurisdiction: 

Alberta

Court: 

Court of Queen's Bench

Timeline: 
1 September 1998 Summary Trial Rules came into effect
September 2000 QB Civil Practice Note No. 8 introduced and Summary Trial Rules amended
2001 Consultations on Alberta Rules of Court Reforms commenced
October 2008 Proposed Rules released
1 January 2010 Planned implementation date
Development: 

Rules 158.1-158.7 (Part 11, Division 1) governing Summary Trials were added to the Alberta Rules of Court on September 1, 1998. These Rules were modelled after B.C.'s Rule 18A.

In September 2000, the Rules were amended and QB Civil Practice Note No. 8 ("PN8") was introduced to further broaden judicial direction.

Purpose: 

To reduce delays in the civil justice system, expedite adjudication and avoid unnecessary costs.

Description of Reforms: 
The summary trial procedure is set out in Part 11, Rules 158.1 - 158.7. It allows a judge to order one or more issues tried by this shorter, and usually simpler, procedure, even if the entire action cannot be conveniently tried in this manner. A decision under these rules is a final judgment which is appealable. Evidence is introduced by affidavit, or with an order, viva voce.

The decision as to whether a matter can be tried by this procedure is made by way of an application in chambers; if the matter is deemed suitable, it is then set for a summary trial. Much of the evidence to be adduced at the summary trial procedure must be introduced in the chambers application...

The Rules do not set out a test nor a process for determining whether a case is suitable for summary trial procedure, other than indicating that a notice of motion is required to apply for judgment (Rule 158.1), and that "on or before the hearing of a summary trial...the judge may" determine whether any issue is suitable for disposition under this procedure (Rule 158.4(1)(a)), or dismiss the summary trial "on the grounds that (i) the issues raised by the notice of motion are not suitable for disposition under this Division, or (ii) the summary trial will not assist the efficient resolution of the action" (Rule 158.4(1)(b)).

Summary Disposition of Actions at 33-34

PN8 sets out the process for determining whether a case is suitable for summary trial procedure, which states that:

  • there are two components to a summary trial - (1) is/are the issue(s) suitable for a summary trial determination, and (2) the merits of the summary trial application. [2(a)]
  • determination of these two components could occur in one application or as two separate matters [2(b)(c)(d)]
The stage one application can be made as a regular chambers application (if it will take less than 20 minutes), or if it will take more than 20 minutes to argue, counsel must reserve a date and time on the civil trial list (PN8, para. 3). The Rules do not address, and the practice note is not entirely clear about, what evidence must be produced at the first stage application: however, the case law establishes that generally most, if not all, of the material that would be filed in support of the summary trial application will be required at the first stage as well. That is why a number of lawyers commented that this type of application involves a great deal of work.

PN8 also confirms that counsel can choose to make the application for determination of suitability for summary trial at the time the summary trial is to be heard, and that even though a preliminary determination is made that the summary trial procedure is appropriate for a particular case, the judge hearing the summary trial can reverse that decision and set the matter for a regular trial (as is set out in Rule 158.6).

Summary Disposition of Actions at 35-36
Not all matters are suitable for disposition by way of a summary trial. In Alberta, Rule 158.4 gives a discretion to the judge hearing a summary trial to adjourn or dismiss it on the grounds that the issues are not suitable for disposition as a summary trial or that a summary trial will not assist the efficient resolution of the action. The rule states that this determination may be made "on or before the hearing of a summary trial" (158.4(1)). The amendments in 2000 added an option of providing advice and directions "including, without determining the merits of a summary trial procedure, a determination, subject to 158.6(1), whether any issue raised in the notice of motion is suitable for disposition under this Division" (Rule 158.4(1)(a)).

Summary Disposition of Actions at 34
Criteria and Methods of Evaluation: 

Other than various amendments, the Alberta Rules of Court have not been comprehensively reviewed since they were written in 1968. As a result, the Alberta Law Reform Institute (ALRI) was assigned to manage the Rules of Court project to oversee the rewriting of the rules. The objective of the Project is to increase the clarity, usability, and effectiveness of the Rules in to make them more accessible.

Rule 158 was reviewed as part of this project.

Results: 
As was noted in the legal community consultations, the summary trial procedures can be very effective but seem to be rarely granted and require a lot of paper work to make the initial application.

Summary Disposition of Actions at 36

ALRI identified the following issues and made corresponding recommendations to the Rules Project General Rewrite Committee in August of 2004:
 

Issues

  • Issue 10: Should the summary trial procedure be a one-stage procedure, a two-stage procedure, or should there be an option?
  • Issue 11: Should the factors to be considered by the court in applying the test for allowing a case to be determined by the summary trial procedure be set out in the rule, or in the practice note?
  • Issue 12: Would changes to the summary trial procedure assist in meeting the goals of lessening delay and providing increased access to justice? For example: (i) Should the rules set out the evidence needed for summary trial in different types of cases? (ii) Do the deadlines for filing materials provide enough time for crossexamination? (iii) Is the way in which summary trials are booked the most efficient method?
  • Issue 13: Summary Trial vs. Jury Trial

Recommendations

The Committee proposed the following:

  • the rules should not set out the evidence needed for summary trial in different types of cases.
  • Rule 158.4(3) should be deleted as it is unnecessary.
  • Rule 158.1 should state that the applicant can include expert evidence in an affidavit; that 218.1 does not need to be complied with; and that timelines can be modified with leave.

The Committee agreed that the summary trial procedure rules should be changed to reflect a presumptive one-stage procedure, rebuttable on application by a respondent who wants to argue that summary trial procedure is not appropriate in the circumstances.

With respect to the test for summary trial, the Committee agreed that the test should be stated in a rule, not a practice note, and should articulate the factors in Rule 158.4(1)(b), although the wording should be clarified and the test should be stated positively. The Committee also agreed to retaining the word "may" in the rule as opposed to making the procedure mandatory.

Given the recent legislative change, the Committee agreed that no change be made to the summary trial rule regarding jury trials now.

Summary Disposition of Actions at 45-46

Proposed Rules 7.5-7.11, Summary Trials (Part 7, Division 3)

Based on the recommendations of the Committee, new Rules were finalized and released on October 2008, including new Proposed Rules 7.5-7.11 governing Summary Trials.

The new Rules state that:

  • a party may apply for judgment by way of a summary trial, which application must (a) be in the prescribed form, (b) specify the issue to be determined, (c) include reasons why the matter is suitable for determination by way of summary trial, (d) be accompanied by an affidavit or any other evidence to be relied on, and (e) specify a date for the hearing of the summary trial, which must be one month or longer after service of notice of the application on the respondent (r.7.5)
  • the respondent to an application must, 10 days or more before the date scheduled to hear the application, file and serve on the applicant any affidavit or other evidence on which the respondent intends to rely (r.7.6)
  • rules re Disclosure of Information, and Experts and Expert Reports apply unless the parties otherwise agree or the court otherwise orders (r.7.7(1))
  • the respondent may object to the application at or before the hearing if either the issue raised is not suitable for a summary trial, or a summary trial will not facilitate resolution of the claim (r.7.8(1)) and if the court so finds, it must dismiss the application (r.7.8(3))
  • after a summary trial, the judge may dismiss the application, or grant the application and give judgment in favour of a party, unless (i) on the evidence before the judge, the judge is unable to find the facts necessary to decide the issues of fact or law, or (ii) the judge is of the opinion that it would be unjust to decide the issues on the basis of the summary trial (r.7.9)
  • If no judgment is given, the judge may (a) order the trial of the action and give directions with respect to preparation for trial and a trial date; (b) give any procedural order that the circumstances require (r.7.11)

Revision History:
This summary was last reviewed in Oct 24, 2013:custom:F, Oct 24, 2013:custom:Y.