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How to Decide if Court of Queen’s Bench or Provincial Court is Best for Your Claim

01-Jul-15

By Jessica Proudfoot and Sarah Levine

It has been nearly a year since the financial limit for lawsuits in the Provincial Court of Alberta (Civil Division) (the proper name for Alberta’s “small claims court”) increased from $25,000 to $50,000. The higher limit has allowed more Albertans to litigate proportionally larger claims in the more accessible and cost-effective forum of Provincial Court.

In fact, the increased financial limits have proven so effective that there are plans to again double the Provincial Court limit for civil claims (lawsuits), this time from $50,000 to $100,000. Bill 16, the Statutes Amendment Act, received royal assent on March 30, 2015 but has not yet been proclaimed in force. Until the sections dealing with the further increase to the Provincial Court financial limits are proclaimed by our new government, the $50,000 limit remains the law.

The Statutes Amendment Act also permits the Provincial Court to stream civil claims into ‘resolution tracks’, which are intended to help resolve civil claims before trial. It is not known what, if any, similarity the ‘resolution tracks’ will have to the current system, which directs most matters to a mandatory mediation or a pre-trial conference prior to trial.
As the financial jurisdiction of the Provincial Court expands, it becomes more and more alluring to parties who are unable to or uninterested in complying with more robust (and expensive) procedural requirements of the Court of Queen’s Bench. However, remember that there are still key differences between the Court of Queen’s Bench and the Provincial Court. Understanding these differences is essential to deciding where to bring your claim. A summary of the key differences is as follows:

Queen’s Bench

  • Unlike Provincial Court, the Court of Queen’s Bench has no financial limits. This means that parties with claims in excess of the Provincial Court limit must file in the Court of Queen’s Bench, unless they are prepared to waive their claim for any amount in excess of the Provincial Court limit.
  • Parties who decide to bring a claim in Court of Queen’s Bench, even though the amount claimed and the subject-matter fall within the jurisdiction of the Provincial Court, should be aware that their costs award may be reduced by 25% or more. This further encourages parties to utilize the Provincial Court system when their claim is within its jurisdiction.
  • Some matters can only be brought before the Court of Queen’s Bench, such as a claim or counterclaim respecting:
    1. title to land that is brought into question;
    2. the validity of any devise, bequest or testamentary limitation (for example, a devise of a fee tail or a life estate);
    3. malicious prosecution, false imprisonment, defamation, criminal conversation or breach of promise of marriage;
    4. an action against a judge, justice of the peace or peace officer for anything done by that person while executing the duties of that office; or
    5. a local authority or school board for the recovery of taxes, other than taxes imposed in respect of the occupancy of or an interest in land that is itself exempt from taxation.
  • The Rules of Court outlines certain procedural steps that must be taken. Compliance with these Rules of Court is more costly. However, the remedies provided may prove particularly useful when an opposing party is delinquent, evasive or obstructionist.
  • There are restrictions about who can appear on your behalf in Court of Queen’s Bench:
    1. A corporation who is a party to litigation must be represented by a lawyer.
    2. An individual can choose to be self-represented or to retain a lawyer.
    3. Generally speaking, non-lawyer agents are not allowed.
  • Pre-trial dispute resolution (for example, mediation) is optional, and proceed on a user-pay basis. Although mediators can be expensive (it is not unusual for mediators to charge in excess of $300/hr) one notable benefit is that the parties have the ability to choose their mediator and tailor a mediation process to suit their interests. Alternatively, there is the option for Court-arranged judicial dispute resolution meeting (“JDR”), which is provided at no cost. However, the waiting list for a JDR is long with parties sometimes waiting more than a year to obtain a date.

Provincial Court

  • The Provincial Court’s civil jurisdiction is defined in s. 9.6 of the Provincial Court Act and includes claims or counterclaims for:
    1. debts whether payable in money or otherwise;
    2. unjust enrichment, including a claim or counterclaim for the recovery of the value of services provided or goods supplied;
    3. damages, including damages for breach of contract;
    4. a determination of the title to and the right of possession of personal property, and for the delivery of that personal property (provided its value does not exceed the amount prescribed by the regulations); and
    5. for specific performance or rescission of a contract, so long as the value of the rights in issue does not exceed the amount prescribed by the regulations.
  • The judicial procedure is governed by the Provincial Court Act, not the Rules of Court. This is intended to allow a quick and inexpensive resolution to a matter before the Court. These simplified procedures are friendlier to self-represented litigants, who would otherwise struggle to understand and comply with the Rules of Court in Court of Queen’s Bench.
  • Fewer procedural steps, combined with greater Court availability, also mean that matters typically resolve sooner than actions filed in the Court of Queen’s Bench.
  • A party, even a corporation, can choose to be self-represented, or to be represented by a lawyer or agent.
  • The Provincial Court procedures provide mandatory pre-trial conferences and mediation services, free of charge. Even if the claim is not resolved, the exercise often assists the parties to narrow the issues for trial.
  • The Provincial Court is more accessible, with over 70 courthouses across Alberta. By contrast, there are only a handful of courthouses which hear Court of Queen’s Bench civil matters. The costs associated with your travel and accommodation to these urban centers, or conversely, the cost of your counsel travelling out to these communities, may be considered.

Using the above factors as a guide, you should carefully consider your priorities and goals for the outcome of your claim, weighing the pros and cons of each forum. If you have questions, you are strongly encouraged to discuss them with your lawyer.

Contractors who have debt/builders’ lien claims provide a good example for why it is important to weigh the pros and cons of Provincial Court and the Court of Queen’s Bench. In such cases, you may elect to file a builder’s lien in Court of Queen’s Bench, or you may file a claim as a debt or damages claim in Provincial Court.

While the latter may be more economical at the outset, you may later regret not having a lien registered against the land, particularly if the debtor proves to be insolvent. One cost-effective option is to file the lien in the Court of Queen’s Bench, apply to have the monies paid into Court, and then stay the Queen’s Bench action pending a trial in Provincial Court.

Finally, parties with unfiled claims between $50,000 and $100,000 (and who are not facing an imminent limitation period) may consider deferring filing their claim until the sections pertaining to the increase are proclaimed and the limit is increased to $100,000. Again, this is something that should be discussed with your lawyer.

The lawyers at McLennan Ross are ready to help. For questions regarding the Provincial Court’s procedures, jurisdiction and financial limits, contact Jessica Proudfoot.

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