Transcript Provincial Court (Civil) Presentation CICMA/CIAA April 14

Navigating the Provincial Court (Civil)
CICMA/CIAA
April 15, 2015
Presented by
Sharon R. Stefanyk & Scott Matheson
The Provincial Court of Alberta (Civil)
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It came into being in 1973 pursuant to the
provisions of the Provincial Court Act, S.A.
1971, c. 86.
Commonly know as small claims court.
Intended to be expeditious and
inexpensive.
Litigants may be unrepresented,
represented by agents, or by lawyers.
The monetary jurisdiction is $50,000.
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Statutory Jurisdiction of the Provincial Court
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It is a s. 92 of the 1867 Constitution Act
court, whose jurisdiction is defined in part
by the Provincial Court Act.
The Court sits in 74 locations in the
province, and through a variety of
provincial and federal statutes, exercises
extensive jurisdiction in criminal, civil,
family, and youth matters.
It has no jurisdiction over: title to land,
breach of promise of marriage, claims
against peace officers, among others.
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Provincial Court Monetary Limits
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Future  $100,000??
2014-2015  $50,000
2002 – 2014  $25,000
1997 - 2002  $7,500
Before 1997  $4,000
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Changes Coming!
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The Statutes Amendment Act
became law on March 30, 2015
Authorizes raising the limit as high
as $100,000
Also gives court the power to hold
binding, unappealable JDRs (by
consent of the parties)
• A real gamble given the nature of small
claims court…
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Changes Coming!
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The Act also moves many of the
rules for civil processes from the
Act to the regulations, making
them easier to change
It also authorizes streamlined or
“shotgun” trials of varying length
(one hour?)
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Provincial Court Fees
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Effective July 1, 2015:
• Civil Claim < $7,500  $100
• Civil Claim > $7,500  $200
• Dispute Notes  $25*
• Counterclaims < $7,500 $50*
• Counterclaims > $7,500  $150*
• Third Party Claims  $50*
• Interlocutory Applications  $50*
*All this used to be $0
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Civil Claims - Service
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A Civil Claim must be served within a year,
unless it is renewed by Order for a period
not exceeding 3 months.
Provincial Court can be more permissive
than Queen’s Bench when it comes to
service. Permitted:
• Giving the documents to the defendant.
• Leaving the documents at the person’s most
usual residence with a resident 16 or older.
• By registered mail.
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Dispute Notes
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If served in AB, must be filed
within 20 days.
If served outside AB, must be filed
within 30 days.
The Provincial Court clerks take
care of service, so once you file the
Dispute Note, service is achieved.
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Third Parties / Notices to Co-Defendants
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Court provides form for third party
notices
But not for notices to codefendants; they can usually just
be added to the body of the
Dispute Note.
It is also acceptable to modify
Queen’s Bench notice forms
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Default Judgment
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If defendant does not file a Dispute
Note 20 (or 30 if ex juris) days
after being served, you can obtain
judgment.
This can be done by desktop
application, without having to
appear in front of a judge.
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The Roulette Wheel: Waiting to Hear from
the Trial Coordinator
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Options:
• Pre-Trial Conference (PTC)
• Mediation
• Trial
• Nothing until you exchange documents.
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You can request PTC in the body of you
pleadings or a cover letter
The pleadings do not close until defences
to counterclaims or 3rd party claims are
filed.
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New Streamlined Process
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The new Act permits the Court to
adopt quicker trial processes
Court has said they intend to do
so, but no announcements yet.
Hints dropped they will book 4-5
trials for one day, an hour each,
with minimal evidence rules
Unclear whether this is by request/consent
or on the Court’s whim
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Discovery
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There are no questionings without an
order.
• Not prohibited, but generally discouraged.
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There are no formal Affidavit of Records,
but records must be exchanged before
trial.
A production order can be obtained at
PTC.
Make sure that order includes everything–
expert report dates, witness lists, etc.
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Applications
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Many applications can be done without
appearing in front of a Judge.
Chamber applications require 7 days
notice (not 5 as in QB)
Applications are scheduled only on
Tuesdays at 1:30, adjournments are
common, and costs are small.
Consider making one-stop omnibus
applications to save on costs (ie
summary judgment, security for costs,
further production)
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Pre-Trial Conference
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Meeting of a Judge and parties together
with their counsel or agents.
Similar to a Judicial Dispute Resolution
(JDR).
It is an evaluative or rights-based
settlement conference conducted by a
Judge.
They usually last 30 to 60 minutes.
It is a very valuable process with a great
success rate.
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Pre-Trial Conference
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Court quite persnickety about requiring
ALL parties to attend
But also want someone there who has
power to settle
So for insured matters, assume both
insured/insurer must attend unless you
have leave to do otherwise
Leave can be obtained by letter
Court fairly flexible in allowing attendance
by phone for any party out of town
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Pre-Trial Conference
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The Judge will attempt to resolve the
matter.
• Settlement discussions are privileged.
• The judge who hears the PTC can’t hear the trial
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If an agreement is reached, settlements
are written up by the PTC Judge and
executed by the parties.
If no agreement is reached, the PTC judge
will issue an order dealing with document
production, independent medical reports,
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etc.
Mediation
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Provincial Court mediators are usually not
lawyers.
Mediators do not give advice, opinions, or
offer solutions.
• For personal injury claims, this is usually a waste
of time.
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Make sure you request a PTC in your
pleadings or in the cover letter.
Always choose PTC over Mediation.
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Trials
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Evidentiary rules are much looser than in
QB. The Judges may admit oral or written
evidence they consider proper.
There are no formal Rules of Court
governing the Court’s procedure.
The Court may apply or modify the Alberta
Rules of Court (Queen’s Bench Rules) as
needed.
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Trials
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Practically speaking:
• Court goes easy on documents
(originals v copies, how introduced,
etc)
• Still fairly tough on hearsay
• Blurred line between party/opinion
evidence, especially in property cases
Try to get agreed facts/exhibits!
Otherwise a nightmare with selfreps
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Witnesses
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Witnesses must be given a Notice to Attend at
least 21 days prior to the hearing.
At the time of service a Witness Fee must be
paid to the witness.
• $10 per day for a non-expert witness.
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• $20 per day for an expert witness.
Court seeking to raise this fee, acknowledges
it’s too low; expect that soon
After serving the witness, an Affidavit of
Service must be filed.
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Costs
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As in Queen’s Bench, costs are
discretionary.
The recovery of costs in Provincial Court is
low – 10% of the value of the claim.
Formal offers (and Calderbanks) are seen
as less persuasive (or binding) than in
Queen’s Bench.
Often, formal offers are simply ignored by
the judge when awarding costs.
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Costs
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Disbursements, however, are usually
awarded
Filing, parking, (sometimes) copying etc.
Expert report costs are risky– court wary
of awarding large amount
Filing fees are going up and applying to
new filings, so expect these disbursements
to be allowed
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Formal Offers
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For a Defendant in Provincial
Court, merely making a formal
offer is not enough to warrant a
double costs award.
For a Defendant to obtain double
costs from the date of the offer at
Provincial Court, the settlement
funds must be paid into Court.
http://www.fieldlaw.com/articles/Lit_CG_Basiccosts.
pdf
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Appeal Process
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Decisions may be appealed to the
Court of Queen’s Bench.
Within 30 days of the judgment:
• File the Notice of Appeal at Provincial
Court.
• Order transcripts from the
management office.
• Serve Notice of Appeal
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Appeal Process
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Within 37 days of judgment, file
Notice of Appeal, transcript invoice
and Affidavit of Service at Queen’s
Bench.
Within 3 months of the above, file
transcript of evidence and serve
copies to respondents.
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Appeals
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Very limited and very costly.
Transcripts are expensive.
There is no further appeal to the
Court of Appeal.
You only get one appeal to the
Court of Queen’s Bench, so you
could be stuck with a bad
precedent.
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Appeals
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Limited; review deferential. Transcripts
are expensive.
There is no further appeal to the Court of
Appeal. You risk being stuck with a bad
precedent. In Kehewin Cree Nation v
Mulvey, 2013 ABCA 294, Justice Cote:
• “though I can state the law for future guidance, I cannot directly
intervene here. Whether the Court of Queen’s Bench can reverse
its erroneous decision, I must leave to it. I cannot affirm or
reverse the decision, as I have no power.”
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The Doctrine of Stare Decisis
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Judges of Provincial Court must follow
the previous decision of higher courts.
Provincial Court judges are bound to
follow decisions from ABQB (including
Masters), ABCA, and SCC.
Decisions from other
jurisdictions/provincial court judges
may be persuasive, but are not
binding.
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Transfers
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From Provincial Court to Queen’s Bench: fairly
easy, by order of the court.
From Queen’s Bench to Provincial Court: fairly
hard, by order, but ONLY if the parties consent.
Otherwise impossible.
Expect more transfers down now that the ABPC
limit has gone up?
But early indications are that there has not
been a flood (yet), according to the Court
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Provincial Court or Queen’s Bench?
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Faster resolution.
Less expensive
No strict rules and
procedures.
Friendlier to self-reps
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Questionings.
Less self reps and no
agents.
More civil remedies
(injunctions)available.
Costs consequences.
Plenary jurisdiction.
Appeals to the Court
of Appeal.
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Self-represented Litigants – Who can help
them?
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Pro-Bono Law Alberta:
• Canadian Civil Claims Counsel Project (CCDC):
Provincial Court Room 262A.
• Amicus Project: Coming to Edmonton soon.
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Law Information Centre (LInC): 2nd Floor
of the Edmonton Courthouse.
Edmonton Community Legal Centre
(ECLC): CDI Building, 10115 100a St NW,
Edmonton, AB T5J 2W2 (780) 702-1725
Lawyer Referral Service: 1-800-661-1095
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Self-represented Litigants
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Make sure you get a good
timeline/production order at PTC.
Attend PTC and be willing to put
(some) money on the table.
Self-reps will not like the
release/discontinuance process.
• Refer them to an impartial lawyer (see
previous slide).
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Do you need lawyers in Provincial Court?
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Legal expertise is still very useful
in Provincial Court.
Lawyers have experience dealing
with self-reps.
Articling Students and Junior
Associates can provide cost
effective, quality work, under the
right supervision.
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When can adjusters run the action?
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Dispute over the value of a vehicle
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Not diminished value claims
Dispute over contents in a house
fire
MVA – where someone needs to
make a determination over which
driver is more credible
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When can adjusters run the action?
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For those simple, low-$ actions
adjusters could retain counsel for
pleadings, then proceed with
production, PTC/mediation
themselves– those venues are
adjuster-friendly
If unable to settle there and matter
is set for trial, call counsel back
from the bullpen
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When should counsel be retained?
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When the plaintiff has legal
representation.
When you are dealing with large
amounts of money.
When liability is at issue.
When dealing with a particularly difficult
self-rep.
In drafting any pleadings
Any steps post-PTC/mediation
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When should counsel be retained?
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When experts will be necessary at
trial
When there are legal arguments to
be made at trial
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New changes on the Horizon?
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The impact of the monetary limits is still
unclear.
Conducting quick trials with limited
discovery can be risky, especially when
quantum is close to $50,000.
How will the Court change when many
personal injury suits are brought, with no
questioning and difficulty in getting costeffective medical experts?
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What steps should be taken early on?
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Personal Injury Claims:
• Prepare your cases early on
• Early Certified Examinations within 90
days
• Surveillance
• Detailed Pre-trial timing Orders
▸ Need document production
▸ May need questioning
▸ Production of expert reports
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What steps should be taken early on?
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Property Claims:
• Independent adjusters should be
meticulous with records
• Detailed Timing Orders
▸ Document production
▸ Questioning
▸ Production of expert reports
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Careful not to obtain a bad precedent
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Personal injury
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Careful of the potential PI awards
Property Claims
• Diminished value cases
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Questions
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Field LLP
• Sharon R. Stefanyk
▸ Phone: 780-423-7684
▸ Email: [email protected]
• Scott Matheson
▸ Phone:
▸ Email:
45
780-643-8765
[email protected]
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