The Court of King’s Bench of Alberta introduced shortened civil litigation timelines last week
Alberta’s trial court has set new expectations for civil litigation deadlines that some lawyers say will help speed up litigation in the province – so long as the court introduces other changes and resources to help move cases along.
Introduced in a notice last week, the Court of King’s Bench of Alberta’s new expectations include parties agreeing on and filing a case litigation plan – which outlines the steps and deadlines leading to trial – within four months of the service of the first Statement of Defence. These plans should schedule trials within 36 months – or three years – and will apply to cases initiated after Sept. 1.
The court said it will expect litigators to make pre-trial decisions that further the goal of resolving cases quickly, noting that pre-trial processes should be “fair and proportionate but need not be perfect.”
The court added it will have a lower tolerance for delays caused by counsel or party schedules, except in exceptional circumstances. Lawyers will be expected to make arrangements, including employing backup counsel, to make sure cases stay on track.
Last week’s changes came on the heels of other efforts by Alberta’s courts to shorten lengthy litigation timelines. Last spring, the Court of King’s Bench launched a pilot project that aimed to expedite cases by allowing litigants to bypass some requirements for securing a trial date, so long as they met certain conditions. Between June 2023 and early July, Alberta’s government also expanded the province’s bench with the appointment of 33 judges.
Litigators in Alberta welcomed the court’s latest changes.
“The goal to always have matters heard expeditiously has been there, but adding this three-year window provides a bit more clarity to litigants,” says Chelsea Nimmo, counsel at Burnet, Duckworth & Palmer, LLP. “Hopefully the court’s goal can actually be more achievable this way.”
Andrew Wilson, chairperson at JSS Barristers, calls the changes “a positive step because delay is endemic and needs to be addressed.”
But Wilson says other changes need to accompany the court’s new expectations. A 36-month timeline is “absolutely reasonable” if the right resources and limits are in place, he says, noting that many complex commercial disputes are resolved in far less time via arbitration because such resources and limits exist.
“In arbitration, subject to what the parties agree [to], typically there’s a much more constrained discovery process, and the arbitrators are available to make determinations on short order,” Wilson says. “So if the court is the same [and] can be available to make determinations for disputes on short order for the parties, then this can easily be met.
“But what we’re seeing now is it takes over a year, in many cases, to book interlocutory hearings, and if the parties can't proceed until whatever issue on that proceeding is determined, they'll never make the three years,” he adds. “Not if it takes one year just to get one aspect determined.”
Craig Alcock, a partner at Burnet, Duckworth & Palmer, LLP, shared similar concerns. With the way Alberta’s courts are currently resourced, it can take up to a year for parties to receive a decision on an interlocutory application, he says.
“Obviously the courts are doing the best they can with the resources that they have. But when you're trying to hit a 36-month deadline to have something to trial, that delay that could be imposed by one interlocutory application could derail that whole thing,” Alcock says.
“That would be my biggest concern – that you don’t have the judges to hear matters, that there could be delays that way.”
Wilson and Nimmo flagged Alberta’s discovery conventions as another potential obstacle to meeting the court’s new timeline expectations. “I do think it can get a little out of hand,” Nimmo says, noting that there are currently few restrictions in the province on the breadth of discovery. Wilson suggests limiting both document and oral discovery as a key way to help matters move along more quickly.
Nimmo says increasing litigants’ access to case management could also help make sure “parties are getting to the finish line.”
If the court does succeed at expediting the civil litigation process, Nimmo, who primarily handles intellectual property disputes, says she anticipates more forum shopping by IP litigants, who have historically preferred waging disputes in federal court because they believe its processes are more streamlined and efficient.
“With this commitment from the Alberta court to have actions tried in three years, the provincial court could become a more attractive forum for IP matters,” she says.
In the meantime, Wilson is cautiously optimistic about the court’s changes.
“I think delay absolutely needs to be addressed,” he says. “I have some concerns about the manner in which it's happening, but it’s definitely a positive step.”
