By Mackenzie Doll-Mercier, Student at the Faculty of Law, University of Alberta
When an individual has a civil litigation matter, they have a few options in how they can resolve it. A civil litigation matter could be dealt with by summary judgment, by proceeding to trial, or alternatively, it could be settled outside of court. However, not all issues are good candidates for summary judgment, which leaves Albertans with only two viable options: to settle or to proceed to trial. If applicants opt for trial, the substantial expenses and long wait times associated with this option can significantly dissuade litigants from doing so. This may disproportionately benefit litigants with deep pockets and could tip the scale in favour of the party that is able to afford to wait it out and advance their matter to trial, consequently causing pressure on the opposing party to compromise or settle. Furthermore, there are jurisprudential consequences for undecided matters affected by the backlog. Matters that could advance the common law had they gone to trial settle instead due to the significant barriers to accessing trial.
Unlike criminal courts, there is no prescribed limit on how long civil matters can take to be heard at trial. Ontario is one of the worst jurisdictions for backlog on civil matters, which can set litigants back by five years waiting to bring an action to trial.[1] The rest of the provinces are not much better.
In Alberta, an average of 40,000 civil cases are filed every year.[2] The most recent statistics show almost 60,000 civil cases were filed between 2021 and 2022.[3] On average, only about 1 out of every 200 cases will go before a judge, as the majority of matters will be settled or diverted to alternative dispute resolution to ease the backlog in the courts.[4] The current wait time in Alberta for a 20-minute application in front of a judge is nine months. Further, litigants can expect to wait several years for a trial date if their trial will last longer than five days.[5]
Based on recommendations from the Alberta Rules of Court Committee, Alberta Courts are introducing streamlined trials for civil and family law as of January 1, 2024. The streamlined trial will replace what is currently known as summary trial. The streamlined trial will have a similar approach to summary trial but has specific rules and procedures that amend the Alberta Rules of Court. Summary trial is not a new concept and is essentially a condensed trial but is significantly underutilized. This blog post will describe what a streamlined trial is, the changes to the trial process, and how these changes will affect Albertans’ access to justice.
What is a Streamlined Trial?
In Alberta, there are currently three different avenues to trial: a judge-alone trial (standard), jury trial and summary trial. Since streamlined trial will replace summary trial, the process will be mostly the same. However, there are a few notable differences.
Firstly, a streamlined trial differs from other trial forms by relying primarily on written rather than oral evidence. This will allow the possibility of resolution of matters with little to no court time.
Secondly, either party to the litigation in the Court of King’s Bench may apply for a streamlined trial, or the court can decide if a streamlined trial is the best option. For individuals at the beginning of the litigation process, this could mean they may be able to resolve issues without in-person appearances to get their case before a judge sooner.[6] In a press release from the Alberta Minister of Justice on November 8th, 2023, it was stated that “the court may decide to proceed with a streamlined trial based on whether the matter can be resolved fairly, the complexity of the issues, the financial amounts involved and the court resources available.”[7]
Thirdly, the parties will have a joint responsibility to prepare materials for the court to identify the issues in dispute and to agree on the relevant and material facts and records. This change is intended to reduce the time spent in a courtroom and to create a more efficient process.[8]
Access to Justice Implications
It is no secret that access to justice is a longstanding issue in Canadian courts. However, it has undoubtedly been exacerbated by the pandemic, and although other methods have been introduced, such as virtual appearances, the access to justice issues persist and are as apparent as ever. The current backlog in the civil litigation system is creating a crisis among Albertans who are struggling to make ends meet and have to choose between access to justice and basic needs. Choosing between a mortgage payment and a law firm invoice for a litigation matter will become increasingly common if a viable solution is not found soon.
The idea behind streamlined trials is to replace the less commonly used summary trial to create a faster and simpler experience for parties attempting to resolve civil and family matters. By relying primarily on written evidence instead of oral evidence, the idea is to allow court resources to be used more efficiently and to free up court time, therefore increasing Albertans’ access to justice.
Preliminary reviews on the process suggest that although lawyers are thankful to see any improvement in a more expedited system, they are hesitant to suggest that it is a perfect solution.[9] Streamlined trials relying on written evidence instead of oral will almost certainly reduce the time in a courtroom but will also shift that burden from the courts to the lawyers and clients having to spend additional time and resources preparing written documentation.[10]
It is impossible to know what this will look like until it is utilized, but this may swap one expense (court appearance) for another (document preparation). However, reducing the wait for a trial, if it works in practice, and any progress towards a possible solution to a barrier to justice for Albertans is a notable improvement to the current legal system.
[1] Colin Butler, “Canada’s backlogged civil and family courts in ‘crisis,’ according to lawyers group” (10 July 2023), online: CBC News <www.cbc.ca/news/canada/london/justice-delays-canada-courts-ontario-1.6900147>.
[2] Black Press Media, “Alberta introduces streamlined civil and family matters court process” (8 November 2023), Red Deer Advocate www.reddeeradvocate.com/news/alberta-introduces-streamlined-civil-and-family-matters-court-process-7105474 [Black Press Media, “Alberta Introduces Streamlined Trial”].
[3] Statistics Canada, “General civil court cases, by type of action, Canada and selected provinces and territories” (16 March 2023), online: Statistics Canada <www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=3510011401&pickMembers%5B0%5D=1.5&pickMembers%5B1%5D=3.1&pickMembers%5B2%5D=2.1&cubeTimeFrame.startYear=2020+%2F+2021&cubeTimeFrame.endYear=2021+%2F+2022&referencePeriods=20200101%2C20210101>.
[4] Black Press Media, “Alberta Introduces Streamlined Trial”, supra note 2.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Carolyn Gruske, “Alberta courts streamline civil and family trial procedures” (14 November 2023) online: Canadian Lawyer <www.canadianlawyermag.com/practice-areas/family/alberta-courts-streamline-civil-and-family-trial-procedures/381393>.
[10] Cal Braid, “Implementation of ‘streamlined trials’ expected to expedite court cases” (16 November 2023) online: The Taber Times <tabertimes.com/news/2023/11/16/implementation-of-streamlined-trials-expected-to-expedite-court-cases/>.
The views expressed in these blogs do not necessarily reflect the views of the Faculty of Law at the University of Manitoba and should not be construed as legal advice or endorsement.