syllabus civil procedure (alberta) · 2018-04-25 · f eder ation of la w societies of canada...

Federation of Law Societies of Canada

National Committee on Accreditation

Syllabus

Civil Procedure(Alberta)

(Revised May 2014)

Candidates are advised that the syllabus may be updated from

time-to-time without prior notice.

Candidates are responsible for obtaining the

most current syllabus available.

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Civil Procedure (Alberta)

PART I. COURSE DESCRIPTION AND OBJECTIVES

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A. Objective

This course is designed to help candidates to become familiar with the basic rules and procedures

involved in the court-based civil dispute resolution system in Alberta.

B. ALBERTA RULES OF COURT AND CODE OF CONDUCT

On 1 November 2010, the new Alberta Rules of Court (the “Rules”) came into force. For information on the new Rules, see e.g. Alberta Courts, Court Services, “Rules of Court”, online:Alberta Courts <http://www.albertacourts.ab.ca/Home/Spotlight/tabid/310/Default.aspx>. This course and the examination for this course are based on the new Rules.

Alberta has also recently revised its code of professional conduct to bring it in line with the new Federation of Law Societies of Canada, Model Code of Professional Conduct (for a discussion of the Model Code process, see online:FLSC <http://www.flsc.ca/en/model-code-of-professional-conduct/>).For a discussion of the Alberta process, and access to the new Alberta Code of Conduct, see online: <http://www.lawsociety.ab.ca/lawyers/regulations/code.aspx>.

C. Format

This course is designed to be self-taught. The readings, together with suggested issues to consider set out in this syllabus, will provide the basic teaching materials. Students will be expected to become familiar with the basic aspects of the Rules, other relevant statutory materials and the form and purpose of, and materials required for, the various basic procedural steps and options in the litigation process.

D. Readings and Materials

1. The primary required materials for this course are the Rules. They provide the basic procedural tools in Alberta. For an online version of the Rules, see Government of Alberta, Queen’s Printer, Alberta Rules of Court 2010, “Alberta Rules of Court”, online: <http://www.qp.alberta.ca/1125.cfm>. Other versions are also available online from different sources.

2. In terms of secondary materials (and annotated materials for the Alberta civil procedure

process), students are encouraged to refer to W. A. Stevenson and J. E. Côté, Alberta

Civil Procedure Handbook, 2013-2014, ed. and rev. by J. E. Côté, F. F. Slater and V.

Stevenson (Edmonton: Juriliber). This annotated set of Rules and commentaries is

based on the new Rules and provides a useful tool for understanding the new Alberta

litigation process. Another useful secondary source is Allan A. Fradsham, Alberta Rules

of Court Annotated, 2014 (Toronto: Carswell, 2013).



3. To help students understand the Rules, procedures and other statutory regimes in Alberta, various cases, comments, statutory materials and other sources are included in this syllabus from time to time. These sources are included, both for a general understanding of civil procedure in Alberta and for success on the exam.

4. Notes:

• A good way to become familiar with the Rules (in the context of this course) is to spend significant time reading and working through the various Parts of the Rules. As such, for each given topic in this syllabus, students are typically provided with reference to the general Parts of the Rules. However, within those general references, students are strongly encouraged to work their way through each of the various Parts in order to find, become familiar with, and understand the specific Rules that govern the basic procedures covered by this course.

• When students are requested to “skim” materials in this syllabus, it simply means that it is recommended that students make themselves aware of a given provision, tool or set of materials. A detailed reading and understanding of the issue is not, however, expected.

• At all times, students should make sure that they are referring to materials that deal with the new Rules.

E. Evaluation

Evaluation for this course is based on a 100%, open-book written examination. Further details about the examination and grading requirements for this course are available from the National Committee on Accreditation.

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For information and on-line versions of the statutes, regulations and other materials, see: <http://www.qp.gov.ab.ca/display_gazette.cfm>.

All of these materials should be available through one or more on-line and/or paper-based legal research source.

For further details and contact information for the National Committee on Accreditation, see: <http://www.flsc.ca>.

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A. INTRODUCTION, COURTS AND JURISDICTION

1. Introduction

Issues to Consider:

A. What is civil procedure?B. What is the operation and function of a lawsuit?C. What are the various relevant definitions, terms and Rules?D. What is the general scope and landscape of the practice of civil litigation

in Alberta?E. How do the Rules promote fairness, equality, access, efficiency and

proportionality? Are they successful?F. How do they avoid a multiplicity of proceedings?

Materials

A. General(i) Rules: Parts 1, 15

B. Other (skim)(i) Rules: Appendix, Index(ii) G. Turriff, “Why are there Rules of Court?” (Fall 2002) 5 News & Views

on Civil Justice Reform (Canadian Forum on Civil Justice (“CFCJ”)) at 25, online: CFCJ <http://www.cfcj-fcjc.org/sites/default/files/docs/news_and_views/newsviews05-en_0.pdf>

2. Jurisdiction

Issues to Consider

A. Which Rules govern which courts in Alberta?B. Under what statutory (or other) authority are the various Rules created and

binding?C. What authority governs the jurisdiction of masters, judges and courts?D. What is inherent jurisdiction?E. What are the various courts in Alberta?F. What other tribunals are available in Alberta? What gives them jurisdiction?G. What other, non-traditional (ADR) options are available to litigants?H. How does the federal system of courts fit within this structure?I. What are the basic avenues of appeal from these various courts/tribunals?J. What are Practice Notes/Directions? Under what authority are they made?

Materials

A. General sources for Alberta and Federal court Rules, forms, notes, directions, etc. (skim)(i) http://www.qp.gov.ab.ca/catalogue(ii) http://www.albertacourts.ab.ca/(iii) http://www.justice.gov.ab.ca/home/(iv) http://www.lawsocietyalberta.com

PART II. COURSE OUTLINE AND READINGS

These “issues to consider”, set out here and under the other various topics, are included simply to help focus students’ thinking when going through the readings and various topics. They are not, however, meant to be exhaustive lists of all important aspects of a given topic, nor are students required to answer all of the questions raised by these issues.

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B. Supreme Court of Canada, Federal Court and Alberta Court of Queen’s Bench (skim)(i) Judicature Act, R.S.A. 2000, c. J 2, ss. 1 5, 8 10(ii) Federal Courts Act, R.S.C. 1985, c. F 7, 17 18(iii) Court of Queen’s Bench Act, R.S.A. 2000, c. C 31(iv) Supreme Court Act, R.S. 1985, c. S-26(v) Court of Queen’s Bench and Court of Appeal Practice Notes and

Directions

C. Provincial Court (skim)(i) Provincial Court Act, R.S.A. 2000, c. P-31, s. 9(1), 9(6), 44 (and relevant

civil regulations)

D. Specialized Tribunals and Judicial Review (skim)(i) Simply notice basic difference between court system and administrative

system

E. Rules (i) Court of Queen’s Bench Act, R.S.A. 2000, c. C-31, ss. 9, 20, 21, 25

(skim)(ii) Judicature Act, R.S.A. 2000, c. J-2, s. 63 (skim)(iii) Rules of Court Schedules: forms, schedules, etc. (skim)(iv) Rules: Parts 1, 10 (Div. 6)(v) Alberta Family Law, Surrogate Court, Court of Appeal, Provincial Court

Rules: see Alberta Rules of Court, vol. 1 (Part 12), vol. 2 (skim)

B. COMMENCING PROCEEDINGS AND PARTIES`

3. Commencement of Proceedings

Issues to Consider

A. What differentiates the various originating procedures in Alberta (statement of claim and originating application)?

B. What Rules are involved?C. What factors suggest and/or require the use of different proceedings?D. What forms and documents are required?E. What is venue?F. What limitation periods apply? Governing principles? Exceptions?

Materials

A. General(i) Rules Part 3, Schedule A(ii) Limitations Act, R.S.A. 2000, c. L-12

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For important information on Practice Directions and other information, see Alberta Courts, Court of Queen’s Bench, “Court of Queen’s Bench Announcements”, online: Alberta Courts <http://www.albertacourts.ab.ca/CourtofQueensBench/Announcements/tabid/92/Default.aspx>.

For a collection of Practice Directions, see online: <http://www.albertacourts.ab.ca/CourtofQueensBench/PracticeNotes/tabid/93/Default.aspx>; and for the Court of Appeal at: <http://www.albertacourts.ab.ca/CourtofAppeal/PracticeNotesDirections/tabid/86/Default.aspx>.

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A significant amount of jurisprudence, including from the Supreme Court of Canada, has developed over the past number of years in the area of class proceedings. That jurisprudence is not required reading for this course. However, for background commentary from the Supreme Court on the development of Alberta’s regime, see e.g. Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534.

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4. Parties

Issues to Consider

A. Who is a proper/necessary party to a proceeding?B. What special types/categories of people can be parties to a proceeding?C. What rules apply to these people?D. How and when can parties be changed, joined, etc.?E. What special documents are required?F. What is a “litigation representative”? What obligations do they have?G. Who can make representations before the Courts?H. What are class proceedings and what is the governing regime in Alberta?

Materials


B. Other (skim)(i) Survival of Actions Act, R.S.A. 2000, c. S-27(ii) Fatal Accidents Act, R.S.A. 2000, c. F-8(iii) Business Corporations Act, R.S.A. 2000, c. B-9, ss. 208-210, 227, 295(iv) Interpretation Act, R.S.A. 2000, c. I-8, s. 14(v) Proceedings Against the Crown Act, R.S.A. 2000, c. P-25(vi) Legal Profession Act, R.S.A. 2000, c. L-8, ss. 105-106

C. \Class Proceedings (skim) (i) Rules: Part 2(ii) Class Proceedings Act, S.A. 2003, c. C-16.5

C. PLEADINGS

5. General Principles/Rules

Issues to Consider

A. What is a pleading?B. What are the various forms/functions of a pleading?C. What determines what goes into a pleading?D. Why are brief and efficient pleadings so important?E. What are pleadings subsequent to a statement of claim

(defence,counterclaim, third party claim, etc.)?F. How and when are pleadings amended?G. What are particulars?

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Materials

A. General(i) Rules: Parts 3, 13(ii) Judicature Act, R.S.A. 2000, c. J-2, s. 8

B. Pleadings Subsequent to Statement of Claim(i) Rules: Parts 3, 13 (ii) Limitations Act, R.S.A. 2000, c. L-12(iii) Contributory Negligence Act, R.S.A. 2000, c. C-27 (skim)(iv) Tort-feasors Act, R.S.A. 2000, c. T 5 (skim)

6. Service

Issues to Consider

A. What is service?B. What Rules govern different forms of service, and service on different

parties?C. What is the difference between service in and out of Alberta?D. What is the difference between jurisdiction, lack of jurisdiction and forum non

conveniens?

Materials


B. Other (skim)(i) Business Corporations Act, R.S.A. 2000, c. B 9, s. 256(ii) Interpretation Act, R.S.A. 2000, c. I-8, s. 23

7. Default

Issues to Consider

A. What is default?B. What are the procedures/Rules governing default?C. What is the difference between liquidated and unliquidated claims in the

context of default?D. What are some practical ways of dealing with/avoiding default?E. How do professional conduct and civility influence issues of default?

Materials

A. General(i) Rules: Part 3

B. Other(i) Law Society of Alberta, Code of Conduct



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D. COUNSEL AND CONFLICTS

8. Lawyers and Undertakings

Issues to Consider

A. What does it mean to have a right to counsel and counsel of your choice?B. How do professional obligations influence these rights?C. What are conflicts, and when do they occur?D. What Rules govern these issues?

Materials

A. Counsel(i) Rules: Parts 2, 5

B. Undertakings(i) Law Society of Alberta, Code of Conduct

E. MOTIONS AND CHAMBERS PRACTICE

9. Motions and Applications

Issues to Consider

A. What is a motion? What is an application? What is the difference?B. When, why, where and how are these various procedures used? C. Who has jurisdiction to hear motions?D. What is the difference between the jurisdiction of Judges and Masters?E. When do you proceed before a Master? A Judge?F. What materials do you need for the various proceedings? G. What evidence is used? In what form? What is an affidavit?H. Do the rules of hearsay apply? Are there exceptions? When?I. What does ex parte mean? J. Do the court’s Practice Directions provide any information with respect to the

procedures, conduct and protocols in motions before Masters and/or Judges?K. How has technology influenced any/all of these issues and procedures?

Materials

A. General(i) Rules: Parts 6, 13(ii) Law Society of Alberta, Code of Conduct(iii) Court of Queen’s Bench Act, R.S.A. 2000, c. C-31, ss. 8-10, 12(iv) Court of Queen’s Bench, Notices to the Profession (see above)(v) Alberta Evidence Act, R.S.A., 2000, c. A -18 (skim)



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F. RESOLVING/DETERMINING CASES PRIOR TO TRIAL, SETTLEMENT AND ADR

10. Resolving/Determining Cases Prior to Trial

Issues to Consider

A. 0 What are the traditional court-based methods for determining or resolving cases prior to trial?

B. What Rules and procedures govern these various methods?C. What other remedies – interlocutory or otherwise – are available?D. What Rules govern settlement?E. What alternative methods are being used by the courts for resolving

disputes in Alberta (judicial dispute resolution, mediation, etc.)? F. What provisions guide all of these processes?

Materials


11. Delay

Issues to Consider

A. What is delay and in what circumstances is it acceptable/not acceptable?B. Do the Rules provide any guidance?

Materials

A. General(i) Rules: Part 4(ii) Law Society of Alberta, Code of Conduct

12. Managing Litigation

Issues to Consider

A. What is involved with “managing litigation”?B. Who has responsibility for managing cases? What role does the court play?C. What Rules, Practice Directions and court initiatives apply?

Materials

A. Managing Litigation(i) Rules: Part 4(ii) Queen’s Bench Civil Practice Notes

B. Court reform initiatives (skim these sources below)(i) Canadian Forum on Civil Justice (http://cfcj-fcjc.org/)(ii) Canadian Bar Association (http://www.cba.org)(iii) Law Society of Alberta (http://www.lawsocietyalberta.com/)(iv) Alberta Courts (http://www.albertacourts.ab.ca)



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13. Settlement

Issues to Consider

A. What formal court Rules/processes are available to help, encourage and govern settlement?

B. What benefits are derived from settlement for the parties and/or the justice system in general?

Materials

A. Generally(i) Rules: Part 4

G. DISCOVERY AND EVIDENCE

14. Discovery

Issues to Consider

A. What is documentary discovery?B. What needs to be produced? Why? Under what authority?C. When is something “relevant and material”?D. Are there exceptions to production obligations? If so, what are they?E. What are confidentiality and privilege and what is the difference?F. What are the ethical obligations that bind lawyers in this area?G. What if people (parties or third parties) do not have ready (or any) access to

various documents? Is there an obligation to find and retrieve documents? H. Does it matter if documents are part of the “public record”?I. What is an affidavit?J. What is examination for discovery?K. Who can examine and be examined?L. What is the scope of examination questions?M. For what purpose can an examination transcript be used?N. How is it different from other out-of-court examinations?

Materials

A. General(i) Rules: Parts 5, 6,13

B. Confidentiality and Privilege(i) ESee e.g. Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319 (skim)

C. Other (i) Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, s. 11 (skim)(ii) Law Society of Alberta, Code of Conduct(iii) Alberta Evidence Act, R.S.A. 2000, c. A-18 (skim)



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15. Admissions

Issues to Consider

A. What are admissions and for what purpose(s) can they be used? When?B. What Rules govern these issues?

Materials

A. General(i) Rule: Part 6

16. Experts

Issues to Consider

A. Who can be an expert? B. How do they differ from lay witnesses?C. What rules apply?

Materials

A. General(i) Rules: Part 5(ii) QB Practice Notes (skim)

H. CONTEMPT

17. Contempt

Issues to Consider

A. What is contempt?B. When does it arise and in what circumstances?C. What remedies are available? Under what procedures?

Materials

A. General(i) Rules: Part 10(ii) Law Society of Alberta, Code of Conduct

I. TRIALS, JUDGEMENTS, COSTS, APPEALS AND TRANSITION

18. Trials, judgements and Orders

Issues to Consider

A. What Rules govern trials?B. What are the procedures relevant to getting ready for trial?C. What formalities are involved: entry, length, format, etc.?D. What Rules govern witnesses and evidence?E. What are the Rules and procedures for juries?F. Are there any Practice Notes/Directions on these various topics?G. What Rules/processes govern judgments and orders, their form, renewal and

enforcement?H. What Rules govern interest in Alberta?I. What Rules govern venue in Alberta?



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Materials

A. Trials (skim)(i) Rules: Parts 3, 8, 13

B. Other (skim)(i) QB Practice Notes(ii) Jury Act, R.S.A. 2000, c. J-3, ss. 17-19(iii) Interprovincial Subpoena Act, R.S.A. 2000, c. I-9(iv) Alberta Evidence Act, R.S.A. 2000, c. A-18, s. 21

C. Judgments and Orders (skim)(i) Rules: Part 9(ii) Civil Enforcement Act, R.S.A. 2000, c. C-15, s. 27

D. Interest (skim)(i) Judgment Interest Act, R.S.A. 2000, c. J-1(ii) Judgment Interest Regulation

19. Costs and Fees

Issues to Consider

A. What are costs? What are fees? B. Do parties recover their costs in various proceedings (motions, trials, etc.)?C. If yes, then how, on what scale and under what authority?D. What different types of costs orders are there?E. When are costs awarded against a lawyer personally?F. When is security for costs appropriate? What is the procedure?G. What issues of access to justice arise in this discussion?

Materials

A. General(i) Rules: Parts 4, 10, 13(ii) Schedules B and C (skim)(iii) Court of Queen’s Bench Act, R.S.A. 2000, c. C-31, s. 21

B. Other (i) Young v. Young, [1993] 4 S.C.R. 3 (skim)(ii) Law Society of Alberta, Code of Conduct(iii) Business Corporations Act, R.S.A. 2000, c. B-9, s. 254

20. Appeals

Issues to Consider

A. Is there a right of appeal in Alberta?B. What are the Rules/procedures/Practice Directions generally governing

appeals?C. What are the time requirements?D. What materials are required to perfect and argue an appeal?



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Materials

A. General (skim)(i) Rules: Part 14(ii) Court of Appeal Practice Directions(iii) Judicature Act, R.S.A. 2000, c. J-2, ss. 2-5

21. Transition

Issues to Consider

A. What are the transition provisions regarding the new Rules?

Materials

A. General (skim)(i) Rules: Part 15

syllabus civil procedure (alberta) · 2018-04-25 · f eder ation of la w societies of canada...

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