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Court Suspends Enforcement of Mandatory ADR Rules

20-Feb-13

February 20, 2013

By Jessica Proudfoot

On February 12, 2013, the Court of Queen’s Bench released a memorandum announcing that it will not enforce the Mandatory Dispute Resolution Rules “until such time as the judicial complement of the Court and other resources permit reinstatement.” Since their introduction in November 2010, these Rules have imposed an obligation on all parties to participate in at least one dispute resolution process before the Court would allow the matter to proceed to trial. Those processes included:

  • a dispute resolution process in the private or government sectors involving an impartial third person, such as mediation; 
  • a Court annexed dispute resolution process; 
  • a judicial dispute resolution process (“JDR”); or 
  • any program or process designated by the Court.

Viewed through the lens of the foundational rule, the Mandatory Dispute Resolution Rules (8.4(3)(a) and 8.5(1)) were originally intended to encourage the parties to identify the issues in dispute as well as to facilitate early and effective communication between those parties. As Mahoney J. noted in IBM Canada Limited v. Kossovan, 2011 ABQB 621, even where a pre-trial dispute resolution does not settle the entire lawsuit, the Court believes that participation in the process can prove useful in narrowing the issues and can thus provide quicker, cheaper access to justice.

Unfortunately, rather than improve accessibility, affordability and timeliness, the Mandatory Dispute Resolution Rules proved to be a complicating hurdle to timely resolution of many claims, particularly where the Defendant disputed liability. Long wait times for JDR dates combined with the Court’s resistance to grant orders waiving the requirement meant that parties had no choice but to wait several months for a JDR, or they had to finance a quicker, albeit more expensive, alternative dispute resolution process. This added delay and expense to an already slow and expensive process.

How long it will take the Courts to build up the judicial complement needed to meet demand for JDRs remains unclear. In the meantime, parties may enter matters for trial without complying with Rules 8.4(3)(a) and 8.5(1).

Parties who are otherwise ready for trial should request a trial date promptly before the backlog of cases waiting for JDR turns into a backlog of cases awaiting trial. Similarly, parties who, for whatever reason, do not wish to participate in a dispute resolution process, should make every effort to ready themselves for trial before the judiciary reinstates the requirement.

This alert is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Sandra Weber or Jennifer Biernaskie, or any other member of our Insurance Practice Group for further advice on this or any other Insurance Law matter.
 

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