For parties who have never been involved in a lawsuit before, the court process can seem daunting. That is why we have provided below a comprehensive overview of the civil litigation process in Alberta, from start to finish.
A civil action can usually be broken down into four stages: (1) pleadings; (2) discovery; (3) settlement; (4) trial. The process will differ depending on whether the action is brought in Provincial Court or the Court of Queen’s Bench. Actions for $50,000 or less fall under the jurisdiction of Provincial Court and all other actions must be filed in the Court of Queen’s Bench. This article will focus only on actions brought in the Court of Queen’s Bench.
A claim is commenced when the Plaintiff files a “Statement of Claim”. For most types of claims, the Statement of Claim must be filed within 2 years from the date the plaintiff first knew they had a claim against the Defendant. The Statement of Claim outlines the underlying facts and the remedy being sought by the Plaintiff. It does not provide any evidence to support the Plaintiff’s claim—that comes later at the discovery phase. The Statement of Claim must then be served upon the Defendant within 1 year of the date it is filed with the Court.
Once the Defendant has been served, they have 20 days to file a “Statement of Defence” (assuming they are served in Alberta; they will have 1 month if served elsewhere in Canada and 2 months if served outside Canada). If the Defendant wishes to make a “Counterclaim” against the Plaintiff, they must do so at the same time. The Plaintiff would then have to respond with a “Statement of Defence to Counterclaim” within the same time requirements. If there is no Counterclaim, the Plaintiff may also file and serve a “Reply to Defence” within 10 days of receiving the Statement of Defence.
If other parties are involved in the dispute, the process gets more complicated. The Rules of Court set out the applicable timeframes for the Defendant to add a Co-Defendant or a Third Party to the lawsuit.
In cases where the Defendant fails to respond, the Plaintiff may have the Defendant “noted in default” and then apply for what is known as “Default Judgment”. This means the Plaintiff will automatically obtain judgment in their favour and may take steps to enforce it.
After the pleadings phase, the next step is the discovery process, which can be further broken down into: (a) exchange of documents; and (b) oral questioning.
Both parties are required under the Rules of Court to disclose all documents that are relevant and material to the issues in dispute between the parties. First, the Plaintiff will provide all documents under their possession and control through what is called an “Affidavit of Records”. The Plaintiff must serve their Affidavit of Records on the other party within 3 months of the date they are served with the Statement of Defence.
The Defendant will then be required to provide their own Affidavit of Records within 2 months of receiving the Plaintiff’s Affidavit of Records.
Any documents that subsequently come to light must be served on the other party through a “Supplemental Affidavit of Records”. If either party is unwilling to disclose relevant documents, the other party may apply to the court for a production order.
After documents have been exchanged, the parties will then schedule dates for questioning. Both parties will be questioned under oath with respect to the documents provided. Transcripts of the questioning will be produced by a court reporter.
During questioning, the other side’s lawyer may ask the witness to search for additional documents or to confirm information which is not readily available at the time of questioning. These requests are called “Undertakings” and parties are required to provide responses to Undertakings within a reasonable period of time. If one party refuses to provide responses or objects to proper questions, this must be dealt with by an application to the court to compel answers.
It may also be necessary for parties to re-attend for further questioning after undertaking responses have been provided.
In practice, the settlement process will usually span the entire course of an action. In most cases, the Plaintiff will inform the Defendant of their potential claim and propose settlement before the claim is even filed, through what is colloquially referred to as a “Demand Letter”.
As the action proceeds and the evidence gains greater clarity, the parties will usually make frequent attempts to negotiate a settlement, in order to avoid the significant time and expense associated with taking a claim all the way to trial. In fact, the vast majority of actions do “settle” before making it to trial. A settlement will usually involve a payment to the Plaintiff in exchange for discontinuing the action and signing a Release preventing them from bringing another claim arising out of the same facts.
After the discovery process but before trial, the parties are required by the Rules of Court to undergo a settlement process called “Alternative Dispute Resolution” (“ADR”). ADR comes in different forms, such as mediation, arbitration, or “Judicial Dispute Resolution” (“JDR”). These processes are more informal than a trial and require the consent of the parties to come to a final determination. The parties will need to certify to the court that they have engaged in ADR, or obtain an order waiving the ADR requirement, before they will be allowed to proceed to trial.
It is important to note the parties can reach a settlement agreement at any point in the litigation process. It can occur before a claim has even been filed or after a trial has already begun—or at any time in between.
If the parties are unable to resolve the matter, a trial is the last resort. After all other steps have been completed, the parties must file a “Certificate of Readiness” with the Court, advising how long the trial will be and the number of witnesses who will testify. The parties are required to provide further confirmation of readiness 3 months prior to the trial date, as well as advise of any changes to the number of witnesses or days required.
Most cases are heard by a judge alone, without a jury. The parties will put forward their evidence in an effort to prove their respective claims or defences. The judge will then issue a decision which is final and binding upon the parties, subject to any successful appeal to a higher level of court. The successful party will typically have a portion of their legal costs reimbursed by the other side. Parties can expect an action to last between 2 and 5 years from the date a claim is filed to the end of a trial. The length of the process depends on a variety of factors, such as the complexity of the issues, availability to schedule questioning and trial dates, requests for extensions, and any applications brought by either party throughout the course of the litigation.
Author: Colby A. Georgsen