In Our Efficiency Era: Alberta Court of King’s Bench Introduces a New Streamlined Trial Process
On November 8, 2023, the Alberta Rules of Court Committee finalized an amendment to the Rules of Court, adding a new “streamlined trial” process to replace the summary trial process. This amendment came into effect on January 1, 2024. The new streamlined trial process is intended to improve the efficiency of the justice system, increasing access to justice. Its implementation is anticipated to result in more wrongful dismissal claims, personal injury claims, debt collection, and straightforward contract interpretation cases advancing through the Court in a timely manner.
Previously, the Rules of Court allowed for two types of trials: a standard trial and a summary trial. Standard trials are full trials, with questioning conducted beforehand and then evidence typically provided orally by witnesses in Court before the parties make their arguments. The summary trial process was designed to be more efficient, allowing participants to bring affidavit evidence instead of oral evidence and often skip the questioning phase. Parties could be cross-examined on their affidavit evidence in advance of the summary trial, allowing the Court to move directly to the argument stage. This process was intended to conserve judicial resources and allow for more matters to be adjudicated during the Court’s limited hours.
Despite these intentions, many litigants have been reluctant to use the summary trial process. One of the primary concerns was that respondents to a summary trial application were permitted to object to the suitability of the process at the summary trial hearing. In commercial litigation matters or personal injury claims, parties often objected to the suitability of summary trial based on the need to assess credibility issues at trial, or where oral evidence or expert evidence was required. Similarly, in the labour and employment context, it has often been a subject of debate whether a summary trial was the appropriate forum to evaluate the issue of just cause in wrongful dismissal claims. While courts were steadily adopting a broader approach to considering all such claims in the summary trial context, litigants were reluctant to proceed all the way when there was chance the court would find the matter was not suitable for that process. Summary trial judges also had the discretion to decline to make a judgement in favour of either party.
As a result of the reluctance to utilize the summary trial process, the Alberta Rules of Court Committee began to develop the new streamlined trial process in 2020, consulting with various members of the legal profession.
The “Streamlined Trial” Process
Alberta’s new streamlined trial process has been specifically designed to reduce the concerns noted above. Most significantly, parties are now required to have a preliminary application on the suitability of the streamlined trial process. Prior to moving forward with the streamlined trial, a party must apply using Form 36 for an Order from the Court permitting the matter to move ahead. This application will be heard at a scheduled Case Conference (R. 4.10).
The Court will grant an Order permitting use of the streamlined trial process when an applicant can establish that the matter can be fairly and justly resolved by the streamlined process and that the process 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 (R. 8.25(1)). An applicant is not required to file affidavit evidence in support of this application but can make these arguments based on the existing Court record. Notably, while this Order cannot be obtained by consent, the Court will take into account any agreement between the parties when evaluating whether the matter is suitable for the streamlined trial process. The Court may also impose costs awards or other penalties on a party that unreasonably objects to a streamlined trial (R. 8.27(2)).
Importantly, the amendments to the Rules of Court emphasize that actions may be suitable for the streamlined process even when issues of credibility may arise, some oral evidence is required, or expert evidence may be introduced (R. 8.25(2)). In a Notice to the Profession on December 22, 2023, the Court stated that the following cases will typically be suitable for the streamlined trial process:
- 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 damages award would likely be under $100,000; and
- wrongful dismissal actions.
Applications for a streamlined trial must be accompanied by a draft streamlined trial order specifying how the streamlined trial will proceed, including a list of potential witnesses that may give affidavit or oral evidence.
Once the Court has granted an Order permitting use of the streamlined trial process, all parties have an obligation to prepare a record that will allow for an efficient adjudication. The record must:
- identify the real issues in dispute;
- agree on relevant and material facts and records that are not in dispute;
- ensure that only the relevant and material evidence necessary to resolve the dispute is contained in the trial record; and
- organize the record and evidence to expedite the streamlined trial and assist the trial judge (R. 8.28).
Following preparation of the record, the parties will be required to follow specific steps to ensure they are prepared for the streamlined trial, including attendance at a second scheduled Case Conference and the completion of various forms.
At the streamlined trial, while most evidence will be introduced by affidavit, the parties will be permitted to introduce oral testimony, expert testimony, and various other forms of evidence, as long as this evidence is contemplated in the Order for a streamlined trial. After contemplating the evidence and the parties’ submissions, trial judges will give a fulsome ruling on the identified issues. Unlike the summary trial process, trial judges in the streamlined trial process no longer appear to have the discretion to decline to make a judgement in favour of either party.
Ultimately, the new streamlined trial process should provide increased efficiency for parties seeking an expedited process and result in a broader scope of matters that can be adjudicated without requiring a full trial. It now appears less likely that issues of credibility or competing expert opinions will prevent claims of all nature from proceeding through an expedited process and we expect the process will be used more extensively for wrongful dismissal claims, including those involving more complex reasonable notice assessments, or decisions on whether an employer had just cause to terminate an employment relationship. The fact that objections to the use of the streamlined trial process will be dealt with in advance of any hearing ought to provide litigants with greater confidence that pursuing this option will not risk a significant waste of resources, and that once into the process, their claim will be resolved one way or another at the end.
McLennan Ross can help your organization understand these changes to the Rules of Court and navigate the new streamlined trial process. Please reach out to our Labour and Employment Practice Group with any questions.