Summary Trials are Out, Streamlined Trials are In

The Court of King's Bench (the "Court") is launching a new streamlined trial process beginning January 1, 2024, which entirely replaces the seldom-used summary trial process. Streamlined trials will hopefully provide a faster, cheaper path to resolve civil actions not requiring a full trial. Borrowing from the arbitration world, the procedure emphasizes reliance on written rather than oral evidence, with significant flexibility to customize the procedure to the specific dispute.

Background

The new streamlined trial process reflects considerable work by the Alberta Rules of Court Committee to find a workable model to replace the existing summary trial process. Two aspects of the summary trial process were particularly unattractive to litigants: (1) the respondent could wait until the eve of the summary trial before objecting to the process, after the applicant had incurred the expense to prepare for the trial, and (2) the judge could decline to make a ruling at the end of the trial. This meant litigants had no certainty as to whether the summary trial would bring finality to the action or simply become another costly procedural step. The incoming Rules governing streamlined trials attempt to address these issues and provide greater direction to litigants and judges.

How to get a streamlined trial

Any party (or the parties by consent) can apply for a streamlined trial. Alternatively, the Court can now also direct an action to proceed to a streamlined trial where deemed appropriate (incoming Rules 8.25 and 8.26).

Under incoming Rule 8.25, an action can be resolved by a streamlined trial if the Court is satisfied that:

(a) it is necessary for the purpose of the action to be fairly and justly resolved, and;

(b) it is proportionate to the importance and complexity of the issues, the amounts involved and the resources that can reasonably be allocated to resolving the dispute.

Importantly, incoming Rule 8.25(3) clarifies that a streamlined trial is not disproportionate just because there are issues of credibility, some oral evidence or cross-examination of witnesses is required, or expert evidence will be introduced.

Critically, if one party objects to proceeding by a streamlined trial, they can no longer wait until the last moment to do so. Under incoming Rule 8.27, any objection will be addressed at a summary hearing. Objections should not be made spuriously, however: parties can now face a costs award or even a penalty under incoming Rule 8.27(2) if the Court concludes their objection was unjustified.

Procedure in a streamlined trial

As part of the goal of efficient dispute resolution, the incoming Rules mandate collaboration. Under incoming Rule 8.28, it is now the joint responsibility of both parties to prepare an organized and succinct record, to identify the specific issues in dispute, and to agree on relevant facts and records not in dispute. Incoming Rule 8.29 requires both parties to confirm the trial date and attend a pre-trial conference at least three months in advance.

As to the trial itself, the Rules leave considerable flexibility to customize the procedure to the specific dispute. Like the summary trial process, the clear expectation is that evidence will primarily be entered in writing. Now, however, the incoming Rules explicitly permit the admission of oral evidence where required.

Obtaining final determination

The last hallmark of the incoming streamlined trial process is the Court's obligation to make a final determination. Under old summary judgment Rule 7.9(1), a judge had the option to dismiss the application, grant the application, or decide that, based on the facts, a finding would be impossible or unjust. Under the new process, a judge must now grant a judgment (incoming Rule 8.31(2)).

Takeaway

Like any amendment to the Rules of Court, whether streamlined trials become a viable option for commercial litigants remains to be seen. There is reason to take the new process seriously, however. All levels of court in Canada are alive to the considerable backlog of cases. One response was the cultural shift in favour of summary judgment proceedings over the past decade. We similarly expect to see the Court strongly encourage the use of streamlined trials where appropriate. For complex commercial cases, this may present a welcome opportunity to carefully craft written evidence and rely on oral evidence only where absolutely necessary.

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