Litigation can appear complex. In this article we explain the litigation process in Alberta from start to finish.
Step 1: Initial Consultation
The litigation process begins with an initial consultation with a lawyer, where the facts of the case are discussed, and legal advice is provided. Typically, the lawyer will assess the merits of your claim by providing you with a legal opinion. This legal opinion can be a written document, or oral advice.
Step 2: Picking the Proper Venue
In Alberta, civil litigation can be pursued in either the (i) Alberta Court of Justice or the (ii) Court of King’s Bench, depending on the nature and value of the claim.
- Alberta Court of Justice: Previously known as the Provincial Court Civil Division, the Alberta Court of Justice handles claims with a monetary limit of up to $100,000. It is designed to provide a simpler and less expensive litigation process. The Alberta Court of Justice is a statutory court and does not possess inherent jurisdiction, meaning its powers must be explicitly granted by statute or necessarily implied by the statutory regime. Accordingly, the court does not have jurisdiction over certain types of claims, such as those involving title to land, validity of wills, malicious prosecution, defamation, and other specific claims.
- Court of King’s Bench: The Court of King’s Bench is a superior court with inherent jurisdiction, meaning its jurisdiction is not derived from any statute or rule of law but from the very nature of the court as a superior court of law. It handles more complex cases, including commercial disputes, personal injury claims, bankruptcy, and family law matters. The Court of King’s Bench follows formal rules of evidence and civil procedure, making the litigation process more rigorous and time-consuming.
Step 3: Commencing an Action in the Court of King’s Bench
An action is initiated by filing and serving a statement of claim (Form 10) or by way of application using an originating application (Form 7) in the Court of King’s Bench. Typically, an action is going to be commenced using a statement of claim. In any event, this initial document is referred to as the “commencement document”, and it will outline the facts and law that make out your claim.
Once you file a statement of claim, you have one year to serve the document on the defendant. After the defendant is served with the statement of claim, they will typically have 21 days to file their statement of defence – though this period is often extended.
Together, the statement of claim, statement of defence, and any counterclaim or reply constitute the pleadings of the case. The pleadings frame the dispute between the parties and are used to assess what is relevant and material to adjudicate the dispute. The pleadings are considered closed, or finalized, when any reply statement is filed, or when the deadline for reply has passed.
Step 4: The Discovery Stage
After the pleadings close, the Plaintiff has 90 days to deliver its affidavit of records. The affidavit of records lists all of the documents that are relevant and material to the dispute between the parties. After the plaintiff delivers its affidavit of records, the defendant has 60 days to deliver its own affidavit of records.
Once the affidavit of records are delivered, the parties will schedule a time for questioning. During questioning, the opposing party can ask questions and seek documents that are relevant and material to the dispute. The parties can also agree to mediate their dispute at this time. During mediation, the parties hire a third-party who will hear both sides and then assist the parties to resolve the claim. Mediations are non-binding, so either party is free to walk away.
Step 5: Pre-Trial Conference
If the case is not resolved at mediation, a pre-trial conference is held where a judge hears from both sides regarding the dispute. A pre-trial conference typically has one of two outcomes: a resolution of the claim, or a move toward trial. If the dispute moves towards trial, the judge will issues deadlines for trial preparations and submissions.
Step 6: Setting Down for Trial:
The action is set down for trial when the plaintiff notifies the court that the case is ready to be tried. The trial scheduling process then begins.
Step 7: Trial
The trial is conducted following formal rules of evidence and civil procedure. The judge hears the case, examines the evidence, and renders a judgment.
Other Steps: Settlement and Applications
At any stage, the parties may reach a settlement. Additionally, various applications may be made during the litigation process. Applications typically deal with inter-locutory dispute (i.e. disputes that deal with procedural matters, as opposed to the merits of the case). Sometimes, however, it is possible to bring an application before trial to deal with the merits of the case in a summary, or expedited, fashion.
If you have any questions regarding the litigation process, please contact us to discuss further.