Miss Trial: Resolving Claims Without a Trial

• Maddison
  Croden

  Maddison
  Croden

  view bio

Parties to litigation are no strangers to the time and expense required to bring a matter all the way to the conclusion of a civil trial. For that reason, parties should be aware of the options that exist under the Rules of Court to obtain judgment or direction from the Court, which can end the litigation without incurring the time and expense of a full trial. This article will discuss four alternatives to resolving claims short of a full trial, which exist under the Alberta Rules of Court: an application to strike, an application for summary judgment, a streamlined trial, and a trial of an issue.

Application to strike all or any part of a claim

An application to strike allows the Court to “strike” or dispose of a claim that has significant deficiencies. The Rules provide that one or more of the following conditions must be met before the Court will exercise its discretion to strike a claim:

1. The Court does not have jurisdiction to hear the claim;
2. The claim or defence has no reasonable prospect of success;
3. The claim or defence is frivolous, improper, or irrelevant;
4. The claim or defence constitutes an abuse of process; or
5. There is some irregularity in the document or pleading that is so prejudicial to the claim that it is sufficient to defeat the claim.

This application can be brought very early on in the litigation process, allowing the parties to avoid unnecessary expense. However, it is important to keep in mind that the application to strike is intended to remove those claims that are, on their face, seriously deficient. Where the Court has jurisdiction to hear a matter and there is the potential that a claim or defence, if true, has merit, an application to strike a pleading in its entirety will often not be successful.

Summary judgment

A summary judgment application is a simplified trial-like process where the Court may make a final determination on the merits of the action using only evidence from affidavits and cross-examination. This means that the action is decided on the basis of transcript or documentary evidence as opposed to live, oral testimony. Summary judgment is appropriate where there is no genuine issue requiring a trial. As a result, a judge will be able to reach a fair and just determination for the merits on a summary basis. This will be the case where the process allows the judge to make the necessary factual conclusions, allows the judge to apply the law to the facts, and is a proportionate, more expeditious and less expensive means of achieving a just result.

A summary judgment application is generally not appropriate for litigation that has complex factual or credibility issues, which could likely only be resolved with the benefit of oral evidence and a full trial.

Streamlined Trial

A streamlined trial is, as it sounds, a shorter or potentially simplified trial of an action. The default procedure is that the trial will proceed by way of affidavit evidence, though the rules do allow oral evidence and some live cross-examination to be permitted.  A streamlined trial will be appropriate where an action can fairly and justly be resolved by the streamlined process, and where this process is proportionate to the importance and complexity of the issues, the amounts involved, and the resources that can reasonably be allocated to resolving the dispute.

The streamlined trial is a full trial on the merits, but of issues where the resources of a full trial are disproportionate to the complexity of the issues. A streamlined trial can be appropriate in actions for the recovery of a liquidated sum, wrongful dismissal, or similar claims.

Trial of an issue

A trial of an issue allows the parties to have a trial on a particular issue raised in the litigation, without a full trial on all issues between the parties. This can be an effective tool where there is a single issue upon which resolution of the action as a whole rests, or where resolution of one issue may strongly encourage the parties to resolve the action outside of the court process.

The Court is often hesitant to separate issues or bifurcate a trial. The presumption is that all issues are decided at once, in one trial or proceeding. As a result, an application for a trial of an issue will only be granted if the Court is satisfied that there is a real likelihood or good probability that trying one of the issues first will dispose of all or part of a claim, substantially shorten the total trial time, save expense, or some combination of these.

Notwithstanding the presumption of a single trial, there may be good reasons to think that splitting off a simple, readily extricable preliminary issue will save time and money, such as where there is an issue as to whether a limitations period to commence a claim has expired.

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}