The Advisory: Volume 8, Issue 4, October 2010
New Rules of Court Come into Effect November 2010
By Jim Eamon, QC, Bencher and Rules of Court Committee, Law Society of Alberta
ALBERTA’S NEW RULES of Court come into force November 1, 2010. Subject to various exceptions, the new Rules apply to existing proceedings under Part 15.
The Rules are written in plain English, organized to reflect the progress of a law suit, and integrate, sometimes with changes, many existing unwritten practices.
Lawyers should be mindful that these Rules, consistent with principles underlying many civil justice reforms across Canada, require that disputes be managed in a timely and cost effective way. As well, they reflect the principle that parties should use public resources (the Courts) efficiently.
The purpose of the Rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost‑effective way (Rule 1.2). The parties and their counsel are obliged to conduct the action in a way that furthers the purpose (Rules 1.2, 2.25, 4.1, 4.2). New processes for litigation management reflect these purposes.
Parties must characterize cases (as standard or complex) within a defined time period, either complete certain steps within a reasonable time (standard case) or agree on a complex case litigation plan (complex case) (Rules 4.3-4.5), and monitor progress (Rule 4.17). Alternative Dispute Resolution is mandatory (Rule 4.16). Judicial assistance through procedural conferences and other tools is available (Rule 9 - 4.14).
There are other important changes including the following:
- The scope of third party claims is broader (Rule 3.44).
- The “drop dead” rule has changed to two years (Rule 4.33) and Part 15 contains transitional drop dead provisions.
- Time deadlines are changed for formal offers (Rule 4.24).
- The pre-trial information disclosure rules permit the Court to modify application of the rules (including where a person acts in a manner that is tediously lengthy) (Rule 5.3; also Rule 1.2(4)), oblige corporate representatives and other witness to prepare (Rule 5.4, 5.23), and provide explicit rules for a continuing duty to disclose (Rule 5.27), undertakings (Rule 5.30) and confidentiality and use of information (Rule 5.33).
- The timing for delivery of affidavits of records has changed (Rule 5.5) and they must not be filed unless the rules permit (Rule 5.32).
- Appeals from a Master are no longer de novo (Rule 6.14), and it remains to be seen what standard of review will apply.
- Procedures for entry for trial have changed (Rules 8.4 to 8.7).
- The rules define who must prepare and approve an order or judgment and when this must be done (Rules 9.2 and 9.5).
- An order permitting Service ex juris is no longer required for service in Canada, and a general test for service ex juris replaces the pigeon holes of the previous rules (Rule 11.25).
There are many terminology changes. For example, motions have become applications, and the labels “examination for discovery” and “cross-examination on affidavit” are gone. Time periods have been standardized, the rules for counting time have changed, and many of the time deadlines in the old rules have changed.
Debates will arise over applicability of old case law. Rule 1.7 provides principles for interpretation and cross-references the purpose statement. In the writer’s view, previous case law will not automatically apply, but forms part of the history that should be considered in interpretation. Where a new rule closely follows wording or concepts from previous rules, it will be a matter of argument whether minor wording changes were intended to change the substance or whether the context of the new Rules indicates that the old concept no longer applies.
Tasks for the Bar before November 1, 2010 include familiarizing lawyers with the changes, particularly time limits for common steps; developing a file audit process based on the transitional provisions in Part 15 to bring files into compliance; and developing new precedents based on the new forms appended to the Rules.Lawyers should start reading the new Rules now, and remember that the Legal Education Society of Alberta will offer seminars on the new Rules in the Fall.
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