Civil dispute resolution: a roadmap of the Alberta options.
The Starting Point: Deciding Whether to Resolve the Dispute Within or Without the Court System
The first choice to be made by someone involved in a civil dispute is whether to bring that disagreement into the court system for resolution or to try to resolve the dispute without the use of court tools. The major disadvantage to using the court system is that formal procedures have to be followed and these procedures necessarily take time and cost money. Additionally, using the court process necessarily means giving the court control over the outcome of the case and, in the end, it is possible that the court's ruling may not please any of the disputing parties. The main advantage of entering the court system, however, is that the dispute can be resolved via a systematic process even without the cooperation of the opposing parry. In contrast, resolving a claim outside of the court system requires some cooperation between the disputing parties--either to agree upon the substance of a compromise to settle the dispute or at least to agree upon the type of non-court procedure to use to deal with the merits of the disagreement. In legal terminology, a compromise on the merits of the dispute is referred to as a settlement.
The court and non-court systems are not necessarily mutually exclusive. Depending upon when and what approach is taken in trying to resolve a dispute outside of the Court system, it may still be possible to bring the claim to the courts if the attempts at an out of court solution fail. Conversely, if a Court action is started, the parties may still resolve the case by agreeing to a compromise before the court decides on the merits of the case. In this situation, the compromise can take place with or without the use of formal court rules.
The Court Route: The First Fork in the Road: Small Claims or Queen's Bench?
In Alberta, there are two levels of courts which can hear trials of civil disputes. The Provincial Court--Civil Claims Division (commonly called Small Claims Court) is comprised of judges appointed by the provincial government. This Court can currently hear a claim for up to $25,000 in damages. The Court of Queen's Bench consists of judges appointed by the federal government and can hear a civil claim for any amount.
The procedures followed by each court when a civil action is begun are quite different. Generally, the Small Claims Court system is much less formal, much more efficient, and therefore much less costly. In Small Claims Court, after the parties involved have each filed a document outlining their respective claims and defences (a pleading), the parries generally proceed directly to trial. There are no regularly required legal steps between filing the pleadings and going to trial. There is a possibility that a meeting of all the parties and a judge will be held prior to trial (a pre-trial conference). A central purpose of the pre-trial conference is to see if the matter can be settled before trial. At trial, the Provincial Court is usually lenient in applying rules of court procedure and evidence. Accordingly, in Provincial Court parties to a civil action frequently appear without a lawyer and argue their own cases.
By contrast, when a lawsuit is commenced in the Court of Queen's Bench, a number of legal steps are generally required before the matter is set down for trial. In particular, between the time that pleadings are filed and the matter is heard at trial, each party participates in a formalized evidence gathering process called Discovery. The Discovery process requires each party to disclose all relevant documents to the opposing party and to provide sworn oral evidence to the opposing party regarding the claim. In some cases, the Discovery process can take years to complete. Largely because of the complicated Discovery process and the detailed rules of evidence and procedure ordinarily used by the Court of Queen's Bench, most litigants hire a lawyer to bring or defend a civil claim in the Court of Queen's Bench. The time and the formal steps involved in a Court of Queen's Bench action can make resolution of a civil dispute in this forum quite costly.
Another Decision: To be Represented by a Lawyer or to Self-Represent
Both Small Claims Court and the Court of Queen's Bench allow parties to appear in court without being represented by a lawyer. In other words, a party to a lawsuit in Alberta always has the option of representing himself and the option of being represented by a lawyer. In Small Claims Court, a party also has a third, middle ground option: namely, to be represented by another person who is not a lawyer. With rare exceptions, this option does not exist for party involved in a Court of Queen's Bench action. Moreover, because of the complicated issues and procedures involved in a lawsuit at the Court of Queen's Bench, it is usually not advisable for litigants to appear in front of this Court without the assistance of a qualified lawyer.
Detours on the Route to a Court of Queen's Bench Trial: Some Other Options for Court imposed Resolutions
Once a lawsuit is started in the Court of Queen's Bench, the goal is usually to have the Court resolve the dispute by means of a trial. At trial, the Court hears oral testimony from witnesses for all parties to the action and reviews all relevant documents before rendering a decision to end the dispute. In some cases, however, a Court may be able to resolve the dispute fairly without necessarily having to hear oral evidence and without the parties going through a formal Discovery process. The Court of Queen's Bench Rules offer several options for dealing with such cases. Included amongst these options are Summary Trial, Summary Judgment, and Default Judgment.
Summary Trial is an expedited trial process whereby a judge can resolve a dispute based solely on written evidence (such as Affidavits or other sworn written testimony). A judge will only issue a ruling by the Summary Trial procedure if he or she is satisfied that the case can be fairly decided without having witnesses appear before the court to give verbal evidence. In a Summary Trial, the judge's ruling decides the merits of the case and ends the matter.
Summary Judgment occurs where a party to a lawsuit asks a judge for an immediate ruling that the opposing party's argument has no legal or Factual basis. In order to grant Summary Judgment, a Judge has to be satisfied that the case is clear and that oral evidence is not needed to resolve any controversies of fact or law. The judge is not weighing competing evidence or resolving disputes of fact as in a Summary Trial situation. In granting Summary Judgment, the Court is concluding that one party simply has no basis for the legal argument being advanced. If the Judge refuses to grant Summary Judgment, the lawsuit continues and proceeds to a full trial. If, however, the Judge grants Summary Judgment, the lawsuit ends.
Default Judgment can occur when the party being sued fails to respond to the claim filed with the Court. In this circumstance, a Judgment is issued in favour of the plaintiff without any trial. The plaintiff wins the lawsuit without any determination of the merits of the claim. The plaintiff wins because the defendant has refused to participate in the Court process.
The Non-Court Route: Alternate Dispute Resolution
Very generally, the term Alternate Dispute Resolution (or ADR) refers to any means of resolving a civil claim without using the formal court system. The most common ADR options include mediation, judicial mediation, mini-trials, and arbitration.
Mediation occurs when the parties to a claim bring their dispute to an independent, objective person who helps the parties to arrive at a mutually agreeable compromise to end the claim. In the case of Judicial Mediation, the mediator is a judge who, though not officially acting as a judge for the purposes of the mediation, brings his or her skills and legal knowledge to the task of helping the parties arrive at a compromise. In order for mediation to be effective, the parties cannot be entrenched in their positions. The purpose of mediation is to arrive at a reasonable compromise between the parties, so all parties must enter the process with a willingness to leave with less than they are claiming to be entitled to.
In a Mini-Trial, a judge hears the arguments and a summary of evidence from the parties to a dispute and issues a non-binding, mock decision. The purpose of a mini-trial is to give the parties to the dispute an idea of how a judge might decide the matter at trial. Although the mini-trial itself does not resolve the lawsuit, the mini-trial judge's findings often influence the parties to settle the dispute without going to trial.
Arbitration occurs when the parties take their dispute before an independent adjudicator other than a court. The adjudicator listens to both sides and makes a ruling as to how the claim should be resolved. Depending on the arrangement agreed to by the parties going into the arbitration, the ruling of the adjudicator may be binding (so must be followed by the parties) or non-binding (so can be rejected by the parties if they don't like it).
Conclusion: The Final Destination
There are a myriad of options available for resolving civil disputes in Alberta and the routes discussed above are only a few of the most significant choices. However, all of the pathways to civil justice in Alberta have a common goal: to resolve the civil dispute as fairly and as efficiently as possible. Each path strikes its own unique balance between fairness and efficiency, usually sacrificing one of these values to some degree in order to more readily achieve the other. Parties to a civil dispute need to be aware of the civil dispute resolution options available in this province so that they can choose the route which best achieves the balance that they are looking for.
Barbara Billingsley is an Assistant Professor with the University of Alberta Faculty of Law in Edmonton, Alberta.
|Printer friendly Cite/link Email Feedback|
|Title Annotation:||Feature on Civil Justice|
|Date:||Apr 1, 2004|
|Previous Article:||Minor corrective force of a transitory and trifling nature.|
|Next Article:||Overview of civil justice project.|
|Justice Department initiates ADR program for civil cases.|
|What's new in alternative dispute resolution?|
|Really alternative dispute resolution (web-site resources).|
|The civil justice system and the public.|
|Class actions in Canada.|