Overview
The Court of King’s Bench of Alberta introduced a new adjudication process called a “Streamlined Trial” and announced the new Streamlined Trial process in the December 22, 2023, Notice to the Profession and Public. In this Notice to the Profession and Public, the Court set out the requirements for a Streamlined Trial, how the process works, and the guidelines for scheduling and preparing for a Streamlined Trial. Effective as of January 1, 2024, amendments to the Alberta Rules of Court were made regarding the Streamlined Trial process. A Streamlined Trial is a full trial on the merits. Rules 8.25-8.31 of the Alberta Rules of Court govern the Streamlined Trial process.
Streamlined Trials vs Summary Trials
The Streamlined Trial process is a new mechanism of adjudication that has phased out the old summary trial process.[1] The Streamlined Trial process is intended to strike a balance between the benefits of a full trial and the expediency of an alternative and shorter process.[2]
Under the old summary trial process, a summary trial could be granted if the Court was satisfied that it could decide disputed questions of fact based on affidavits, or other authorized proceedings, and where it would not be unjust to decide the issues by way of summary trial.[3] In contrast, the test for a Streamlined Trial requires that it is necessary to use a streamlined process to have the action fairly and justly resolved.[4] Unless the party seeking a Streamlined Trial can establish that a Streamlined Trial is necessary for the fair and just resolution of an action, the default process is a regular trial.[5]
How Does the Streamlined Trial Process Work?
Rules 8.25-8.31 of the Alberta Rules of Court govern the Streamlined Trial process in Alberta. A Streamlined Trial is a simplified version of a full trial on the merits. The purpose of Streamlined Trials is to resolve civil actions, except for family law related actions, which can be fairly and justly resolved by the streamlined process, while considering the importance and complexity of the issues, the quantums involved, and the amount of resources that can reasonably be allocated to resolving the dispute.[6]
Under Rule 8.25(1), the Court determines whether an action is suitable for the Streamlined Trial process based on the following criteria:
- It is necessary for the purpose of the action to be fairly and justly resolved; and
- 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.
A party may make an Application for a Streamlined Trial with the Court of King’s Bench, or the Court may make its own motion and determine that an action will proceed under the Streamlined Trial process. If proceeding by way of application, the Applicant must show on a balance of probabilities, that the Streamlined Trial is both necessary and proportionate.[7]
A Streamlined Trial is typically available for the following actions:
- the recovery of a liquidated sum;
- the recovery of real or personal property;
- those primarily dependant on the interpretation of documents;
- damages for personal injury in which the damage award would likely be under $100,000; and
- wrongful dismissal actions.[8]
An action may still be suitable for the Streamlined Trial process even in the following circumstances:
- issues regarding credibility arise;
- some oral evidence may be required;
- cross-examination of some witnesses may be required; or
- expert evidence may be introduced.[9]
Rule 8.26(1) sets out the process for commencing a Streamlined Trial. An Application for a Streamlined Trial needs to be made in one of the following ways:
- by filing the application in Form 36 and serving the application on the other parties;
- by submitting a written request to the Court alongside a proposed consent order setting out the process in which the parties have agreed the Streamlined Trial will follow;
- by making a request through the case management process; or
- as directed by the Court.
The Court has also set guidelines for scheduling and preparing for the Streamlined Trial, as discussed in the December 22, 2023, Notice to the Profession and Public. Before the Streamlined Trial date, each party must prepare a written opening statement that is no longer than 5 pages. The opening statement must do the following:
- outline what that party believes the evidence will demonstrate; and
- provide an overview of that party’s position on the outcome.
The parties are also responsible for filing an Agreed Statement of Facts that contains the following:
- the identity of the parties;
- the background to the cause of action; and
- the identity of the records that are not in dispute.
The parties need to provide organized extracts of the written interrogatories and the transcripts from questioning that will be introduced as evidence at the Streamlined Trial.
For expert evidence, Rules 5.34 and 5.35 still apply to a Streamlined Trial. The parties should agree on the area of expertise of the experts before the Streamlined Trial. The expert evidence should generally be introduced through an affidavit and attaching the experts’ reports and resumes to the affidavit.
Regarding oral evidence, the Streamlined Trial Order must indicate which witnesses, if any, each party will call to provide oral evidence. The Order must also indicate whether each witness will be permitted to give evidence in chief or are only presented for cross-examination. Further, the Order needs to include the estimated time required for each witness to provide oral evidence. Generally, the examination in chief of any witness should be less than 10 minutes, and the cross-examination of any witness should be less than 30 minutes.
For the cross-examination of affiants, the cross-examination should primarily occur by questioning on the affidavits before the Streamlined Trial. In addition, each party must file a closing brief that is no longer than 15 pages. The closing brief must contain the following:
- the facts relied on;
- the reasons for the relief requested; and
- any legal or other arguments.
Each party will have 15 minutes allotted for their closing argument. The party that gives the first closing argument is entitled to a short response to the closing argument of the other party.
Differences Between a Streamlined Trial vs a Normal Trial
A Streamlined Trial is meant to be quicker and more cost-effective than a normal trial. A Streamlined Trial has the following differences from a regular trial:
- evidence is entered by affidavit instead of direct examinations, including expert evidence;
- any objections to the admissibility of proposed evidence must be raised in a timely manner;
- limited oral evidence is given, including expert evidence;
- any anticipated oral testimony must be provided for in the Streamlined Trial Order;
- limited ability for the cross-examination of experts or witnesses;
- limited determination of credibility issues; and
- limited to disputes that are not factually complex and have minimal issues for determination.
Caselaw
Although the rules regarding the Streamlined Trial process have been in effect for less than a year, the rules have received considerable judicial consideration.
Arsenault v Big Rock Brewery Limited Partnership, 2024 ABKB 387
In Arsenault v Big Rock Brewery Limited Partnership, 2024 ABKB 387, the Court dismissed the Plaintiff/Applicant, Wayne Arsenault’s Application for a Streamlined Trial because it was not necessary given the complexity of the case. Mr. Arsenault was formerly employed as President and CEO of Big Rock Brewery. Mr. Arsenault commenced a wrongful dismissal action against the Defendants/Respondents, Big Rock Brewery Limited Partnership et al., on the basis that his termination was without just cause.
At paragraph 22, the Court set out a non-exhaustive list of circumstances in which a Streamlined Trial may be necessary. The Court determined that a Streamlined Trial was not necessary because the action involved significant financial records and required multiple witnesses. As a result, a Streamlined Trial would not be a more cost-effective mechanism of adjudication given the pre-trial preparation and the nature of the evidence required.
Moore v Turner, 2024 ABKB 435
In Moore v Turner, 2024 ABKB 435, the Court proceeded with a Streamlined Trial on the basis that the issue for determination was simple and required limited witnesses, and the procedural history included significant pre-trial preparation and disclosure.[10] The deceased, Elsie Gorr, had three joint bank accounts originally held by herself and the Defendant, Marilyn Turner. After Ms. Gorr’s death, the issue arose of whether the funds in the joint bank accounts should belong to her estate or pass to the Defendant by right of survivorship. The Plaintiff, Beverly Moore, claimed a declaration that the account funds were held by Ms. Turner on resulting trust for Ms. Gorr’s estate.
The Court held that the action was suitable for a Streamlined Trial because the issue to be determined was simple and required a limited number of witnesses. The Court factored the Defendant’s lack of participation and submission of evidence into its decision. The Court found that the evidence presented, including bank records and the Defendant’s pre-trial questioning, supported the Plaintiff’s position that the funds were held on a resulting trust for the estate.
Hou v Canadian North Inc, 2024 ABKB 549
In Hou v Canadian North Inc, 2024 ABKB 549, the Court determined that a Streamlined Trial was not suitable for a wrongful dismissal action involving complex and numerous issues for determination, and significant factual disputes.[11] The Plaintiffs/Applicants, Chee Hou and Peter Perdue, were employed by the Defendants/Respondents, Canadian North Inc and Kelco Aersospace Inc, and each brought an action for wrongful dismissal. The Plaintiffs’/Applicants’ claims concerned similar issues, and both were represented by the same counsel.
The Court denied the Plaintiffs’/Applicants’ applications for a Streamlined Trial because the actions contained significant factual disputes, and numerous complex issues such as the legal status of the Plaintiffs/Applicants, the regulatory environment, and the Defendants’/Respondents’ business model. The Court also denied proceeding with a Streamlined Trial because the proposed time allotted for testimony and cross-examination exceeded the guidelines set by the December 22, 2023, Notice to the Profession and Public regarding the Streamlined Trial process. Since the Streamlined Trial process relies significantly on affidavit evidence and limited oral testimony, the Court ultimately held that it would not be sufficient to fairly and justly resolve the issues without a regular trial.
The Court also set out what is referred to as the “exclusivity” test at paragraph 22. The Court stated that necessity can be established by showing that an action can be fairly and justly resolved by a Streamlined Trial but not by the ordinary trial process. In other words, if a party can establish that alternatives to a Streamlined Trial, such as a regular trial, are not possible, then the party has established that a Streamlined Trial is necessary.
Bailey v Northern Alberta Institute of Technology, 2024 ABKB 563
In Bailey v Northern Alberta Institute of Technology, 2024 ABKB 563, the Court determined that a Streamlined Trial was not suitable in this wrongful dismissal action against a former employer.[12] The Court dismissed the Plaintiff/Applicant, Jeffrey Bailey’s Application for a Streamlined Trial. Mr. Bailey, a long-term employee at the Northern Alberta Institute of Technology (NAIT), was terminated on a “for cause” basis for taking office chairs that he believed were being disposed of and attempting to sell them online.
The Court held that Mr. Bailey failed to establish that a Streamlined Trial was necessary and proportionate. The Court said that although the amount at stake suggested that a Streamlined Trial was proportionate, the scope and complexity of the issues for determination, including the need for credibility assessments, and the resource allocation were not proportionate. For these reasons, the Court determined that a full trial was necessary.
Conclusion
At this stage, it is difficult to determine the long-term effectiveness of the Streamlined Trial process given the strict interpretation and application of the two-part test for determining the suitability of an action for a Streamlined Trial. The caselaw shows that an Application for a Streamlined Trial is granted in limited circumstances, which may undermine the Streamlined Trial process’ attempts to resolve actions in a simpler and more cost and resource-friendly manner. The caselaw also highlights that the courts have maintained a strict interpretation of what constitutes “necessity”, starting with Arsenault v Big Rock Brewery Limited Partnership, 2024 ABKB 387 and with the recent articulation of the “exclusivity” test in Hou v Canadian North Inc, 2024 ABKB 549.
On the other hand, there are potential benefits of the Streamlined Trial process if a party can establish that their action is suitable for the process. Some benefits of a Streamlined Trial are that it is a more resource and cost-effective method of adjudication, and a simpler version of a regular trial.
All things considered, the preparation of the court record and submissions regarding the suitability of an action for a Streamlined Trial are essential. Please contact one of our lawyers at Whitelaw Twining if you have any questions or are involved in litigation where a Streamlined Trial may be an applicable method of adjudication.
Written by Jeremy Ellergodt with contribution from articling student, Tayla Basawa.
[1] Arsenault v Big Rock Brewery Limited Partnership, 2024 ABKB 387 at para 17.
[2] Ibid.
[3] Ibid at para 19.
[4] Ibid at para 20.
[5] Ibid.
[6] Alberta Rules of Court, Alta Reg 124/2010, vol 1, r 8.25(1) [Rules of Court].
[7] Bailey v Northern Alberta Institute of Technology, 2024 ABKB 563 at para 4 [Bailey].
[8] Court of King’s Bench of Alberta, Notice to the Profession and Public: Streamlined Trial Process – Civil (Non-Family) Actions, NPP#2023-02.
[9] Rules of Court, supra note 6 at r 8.25(2).
[10] Moore v Turner, 2024 ABKB 435.
[11] Hou v Canadian North Inc, 2024 ABKB 549.
[12] Bailey, supra note 7 at paras 29-30.
