Recent Amendments to Alberta's Rules of Court02-Apr-20
By the McLennan Ross Insurance & Risk Management Team
The Alberta Rules of Court were recently amended. The most significant amendments are with respect to Schedule C, increasing the amounts for costs awards and adding litigation steps that warrant costs, as well as enhanced disclosure requirements for privileged records disclosed in an Affidavit of Records (“AOR”). Other minor amendments include changes to the rules governing case management, trial dates, lawyer’s charges, service of documents and appeals.
Effective May 1, 2020, existing Schedule C costs will be increased by approximately 35% to account for inflation. Additionally, the applicable monetary amounts under each column has been increased. For example, “Column 1” now applies where the amount claimed in a matter is up to and including $75,000, as compared to the previous limit of $50,000. This increase is likely in anticipation of an increase in the limits to which the Provincial Court will have jurisdiction over (i.e. from $50,000 to $75,000). Amended Schedule C amounts will apply to all litigation steps before or after May 1, 2020.
Further to these increases, there have been amendments to the litigation steps that attract cost awards. These include:
- Item 3 (Disclosure under Part 5) has been amended to separate disclosure into separate litigation steps including disclosure of records, including an AOR, under sub rule (1), and review of opposite party documents under sub rule (2). Review of opposite party documents will now result in costs equivalent to ½ day attendance fee at Questioning under item 5(2) and can be increased if circumstances warrant. Sub rule (3) has also been added to allow a court to reduce the fee for reviewing opposite party documents if there are few records requiring a limited amount of time to review.
- Item 5 (Oral Questioning under Part 5) has been amended to add sub rule (1) which includes preparation for oral questioning under Part 5 (once per action) as a litigation step resulting in costs equivalent to ½ day attendance fee at Questioning under item 5(2). Sub rule (4) has been also added to include preparation of and response to written questions as a litigation step resulting in costs equivalent to 1 full day at questioning under item 5.
- Item 8 (Applications Requiring Written Briefs) has been amended to add sub rule (2), which imposes a fee for abandoned applications equivalent to 50% of the fee that would be payable had the application not been abandoned.
- Item 9 (Trial Readiness and Case Management) has been amended to allow interlocutory applications brought under rule 6.3 and heard during case management attendance to result in a fee for the application, or fees for both the application and case management attendance, depending on whether there is any duplication of work.
- Item 10 (Trials) now applies to both trials and summary trials. Sub rule (3) has also been added to impose a preparation fee if a matter is set down for trial or summary trial and resolved less than 3 months before its scheduled starting date. The amount awarded for a preparation fee is based on the length of the scheduled trial or summary trial.
Affidavit of Records
The amendments repeal and replace Rule 5.8 and provides new disclosure requirements for records to which a party objects to produce in its AOR.
The new Rule 5.8 requires that a party must sufficiently describe the record and the grounds for the objection, including the type of privilege claimed over the record so a court is able to confirm that each record is disclosed in the AOR without undermining the privilege that is claimed in respect of the record. A party can number, bundle and collectively describe records in an AOR if the records are related, objected to on the same grounds and described with sufficient clarity.
While the new Rule 5.8 does not set out the amount of detail required to sufficiently describe a privileged record, the Saskatchewan Court of Queen’s Bench has held that the description of the document must provide: (a) details that allow the document to be identified; and (b) information that permits a judge to determine whether a prima facie case of privilege exists. See: Brewster v Quayle Agencies Inc., 2008 SKQB 137.
Other amendments to the Rules include:
- Rule 4.16 (Dispute Resolution Process) is amended by adding sub rules (4) through (6), which grants a case management judge or case conference judge the discretion to order parties to participate in a dispute resolution process and give directions respecting any aspect of that process, including costs.
- Rule 8.5 (Trial Date Scheduled by Judge) is amended by updating sub rules (2) and adding sub rule (3). These amendments specify that the court’s authority to make any procedural order to expedite or facilitate activities necessary to meet or obtain a trial date is subject to Rule 1.5(4), which prescribes the limits on the courts discretion to cure procedural contravention, noncompliance or irregularity. The new sub rule (3) specifies that the court may make such a procedural order despite a Form 37 or Form 38 being signed and despite parties having complied with the requirements for requesting a trial date under Rule 8.4(3).
- Rule 10.33 (Cost Considerations) is amended to specify that when a court is making a costs award, the trial judge should consider any offer of a settlement made, regardless of whether or not the settlement offer complies with Part 4, Division 5 of the Rules.
- Rule 11.2 (Service not invalid) is amended to specify that the Rule is applicable to service of non-commencement documents or documents served at the registered office of any person required by in an enactment to have a registered office.
- Rule 11.26 (Method of service outside Alberta) was also amended and Rules 11.33 to 11.35 were added to govern service in a contracting state under the Hague Convention.
- Rule 14.47 (Application to restore an appeal) is amended by adding that an application to restore an appeal must be filed and served as soon as reasonably possible.
There has long been a criticism that Schedule C costs were out of date. It is unclear whether the amendments will adequately address those concerns.
It is possible that Alberta courts will continue their current trend of using multipliers, lump sum awards and percentage indemnity awards in order to achieve a 40% to 50% indemnity of actual legal expenses. However, recent Alberta decisions appear to suggest that Schedule C is being applied in determining cost awards (see, for instance: Wang v Chartered Professional Accountants of Alberta, 2020 ABCA 5; Arndt v Scandinavian Cultural Society of Calgary, 2020 ABQB 23; Chemtrade Electrochem Inc v Stikeman Elliot LLP, 2020 ABQB 13).
If you would like more information or have any questions regarding the updates noted above, please contact Marika Cherkawsky, Alexis Moulton, Doug Boyer, or any member of our Insurance & Risk Management group.