At the beginning of this year, amendments to the Alberta Rules of Court (the "Rules") came into force which repealed the summary trial process and replaced it with a new streamlined trial process.1 The new streamlined trial rules address criticisms of the summary trial process that discouraged litigants from engaging in summary trials, namely that previously, a party could object to proceeding by summary trial up until the very eve of the trial and a trial judge could decline to decide the matter at the end of a summary trial.2
To solve these issues and create a process that litigants may be more eager to use, the new rules require:
- parties to obtain an order permitting the use of the streamlined trial process in advance; and
- the trial judge to issue a judgment at the end of a streamlined trial.3
Any dispute over the mode of trial under the streamlined trial rules would be resolved in a summary manner relying on the pleadings and submissions of the parties.4 The judge presiding over such an application would have the power to impose a penalty or cost award in response to unjustified objections to the use of a streamlined trial.5
The primary difference between a streamlined trial and a full trial is that evidence is typically entered by affidavit instead of live testimony in court. Streamlined trials otherwise have similar procedural rules subject to such modifications as the presiding judge deems appropriate and necessary.
In its Notice to the Profession and Public on the Streamlined Trial Process,6 the Court of King's Bench of Alberta ("ABKB") provide some suggestions of case types that will often 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 damage award would likely be under $100,000; and
- wrongful dismissal actions.7
To order a streamlined trial, the Court must be satisfied that the streamlined trial is:
(a) necessary for the purpose of the action to be fairly and justly resolved, and
(b) proportionate to the importance and complexity of the issues, the amounts involved and the resources that can reasonably be allocated to resolving the dispute.8
The ABKB has only recently reviewed applications for streamlined trials under this two-part test in Rule 8.25(1). We have summarized the only two decisions to date on the question of whether an application for a streamlined trial should be granted.
Arsenault v Big Rock
The first decision under the new streamlined trial rules, Arsenault v Big Rock, involved a claim by Wayne Arsenault ("Arsenault") for wrongful dismissal by his former employer, Big Rock Brewery Limited Partnership ("Big Rock").9 Though the case was a wrongful dismissal action, Justice Armstrong held it was not an appropriate matter for a streamlined trial.
The Court contrasted the rule for a summary trial with that for a streamlined trial noting that it "is no longer whether the matter can be decided using a streamlined process; it is whether it is necessary to use a streamlined process to have the matter fairly and justly resolved."10
Big Rock's defence against the wrongful dismissal action alleged that Arsenault had engaged in financial misrepresentation and mismanagement.11 Big Rock argued that it would need to produce a significant number of financial records and call a minimum of five (5) witnesses to prove its allegations.12 Justice Armstrong considered that in a streamlined trial process, all witnesses would need to file and serve affidavits, which they could be questioned on by the other party prior to the trial. Justice Armstrong compared this process with the standard trial process, where Arsenault's questioning of Big Rock would be restrained to Big Rock's corporate representative and Arsenault would carry the responsibility and costs for seeking additional questioning.13 In this case, Justice Armstrong held it would be more efficient and cost effective to proceed by a standard trial rather than a streamlined trial.14
The Court was similarly concerned with the increased expense of judicial resources required to prepare for this case should it proceed by way of streamlined trial.15 Justice Armstrong considered that preparing for a streamlined trial with multiple affidavits and transcripts of questioning would require significant judicial time, especially in a more factually complex case.
Justice Armstrong determined that "[w]hile there may be savings of two or three days of trial time with a streamlined trial, that savings will be more than offset by the additional pre-trial steps that will be required for a streamlined trial in this case and by the considerable time the judge must spend reviewing all the evidence in advance of a streamlined trial."16
As a result, the Court found that the nature of Big Rock's allegations in defence meant that a streamlined trial was not necessary for the action to be fairly and justly resolved.17 Having failed the first prong of the test for a streamlined trial, it was unnecessary for the Court to consider the second prong of the test; however, the Court did speak to proportionality should its finding on necessity be incorrect.18
Justice Armstrong held a standard trial was the proportionate process in this case.
In determining whether a streamlined trial is proportionate to the claim, the Court noted the following considerations for the claim: (i) size;19 (ii) complexity;20 (iii) urgency;21 and (iv) savings in time and costs.22 Justice Armstrong emphasized that "[w]here a streamlined trial order is likely to complicate, prolong or otherwise impede the path to a final determination of a matter, it will not be a proportionate process."23
Moore v Turner
Less than a month after Arsenault v Big Rock, the ABKB released a second decision on whether to permit a streamlined trial. In Moore, Justice Eamon allowed the matter to proceed by way of streamlined trial24 At issue in Moore was whether the funds from three joint bank accounts belong to the estate of the deceased Elsie Gorr or to the surviving join account holder, Marilyn Joyce Turner ("Turner"].25
The action commenced in February of 2020 with a consent order to begin pre-trial steps.26 In May of 2022, it was ordered to a summary trial under the old Rules by consent.27 The summary trial was set for February 14, 2023, but due to resource issues, the Court had to cancel their summary trial date and rescheduled the matter for May 17, 2024.28
On the day of the scheduled trial, the Court considered whether it should exercise its authority under Rule 9.15(4) to vary the summary trial order to allow for the action to proceed by streamlined trial.29 In coming to the conclusion that the action could proceed by way of streamlined trial, the Court noted that Turner was "not in any way prejudiced by continuing the agreed-on summary trial as a streamlined trial under the amended rules".30 Finally, the Court highlighted the following factors which supported proceeding by streamlined trial:
- the amount involved is relatively low in light of the cost of litigation;
- the number of potential witnesses is small;
- the matter is not complex;
- there are specific requirements of burden of proof and corroboration that protect the Estate's interests;
- the matter is long standing given the trial of the issue was directed more than 4 years 3 months before the trial;
- both sides had a fair opportunity to put forward evidence and neither have identified any potential evidence for which they have not had a fair opportunity to adduce;
- the parties are elderly and the matter should be resolved without further delay;
- the evidence in the record, in view of the applicable presumption of resulting trust and the corroboration requirement, is sufficient for a streamlined trial.31
Unlike in Arsenault v Big Rock, the parties in Moore had already consented to a summary trial and the Court had the benefit of the evidentiary record already before it. The Court in Moore did not focus on the "necessity" of a streamlined trial as in Arsenault, but instead the requirements of fairness, justice and proportionality.32
Takeaways
Both cases can provide some insight into which actions may succeed in proceeding to a streamlined trial. These two decisions highlight the consideration of factual complexity and quantum at issue in ordering a streamlined trial. Actions must not be too large to slow down the process of a streamlined trial, as was the concern in Arsenault v Big Rock, thus losing the time and cost efficiency intended by the process. Rather smaller and simpler actions may better suit a streamlined trial, particularly when the amount at issue is relatively small when compared to the cost of litigation as in Moore.
Finally, accessibility to timely resolution is important for all litigants. In Moore, the delays already experienced in the case were emphasized as favouring an earlier resolution by streamlined trial. Delay in the court system for trials is nothing new and something more than the norm may be required to show the Court a streamlined trial is necessary to avoid delay.
Footnotes
1 NP#2023-02 (albertacourts.ca); O.C. 185/2023 (alberta.ca).
2 streamlined-trial-rules.pdf (albertacourts.ca).
3 NP#2023-02 (albertacourts.ca); Rule 8.31.
4 Rule 8.27(1); NP#2011-04 (albertacourts.ca).
5 Rule 8.27(2).
6 NP#2023-02 (albertacourts.ca)
7 ibid
8 Rule 8.25(1)
9 Arsenault v Big Rock Brewery Limited Partnership, 2024 ABKB 387 at para 1 [Arsenault].
10 ibid at para 20.
11 ibid at para 25.
12 ibid at para 25.
13 ibid at paras 26–27.
14 ibid at paras 27–28.
15 ibid at para 30.
16 ibid at paras 30, 32.
17 ibid at para 34.
18 ibid at para 35.
19 ibid at para 41.
20 ibid at para 42.
21 ibid at para 43.
22 ibid at paras 44–45.
23 ibid at para 48.
24 Moore v Turner, 2024 ABKB 435 at para 49 [Moore].
25 ibid at para 1.
26 ibid at para 21.
27 ibid at paras 8, 22.
28 ibid at para 12.
29 ibid at para 16.
30 ibid at para 47.
31 ibid at para 48.
32 ibid at para 49.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2024