Court of Queen's Bench Civil
Practice Notes
Table of Contents
Applications without
Personal Appearance
Practice Note "5"
Special Chambers Applications Practice Note "6"
Very Long Trial Practice Note "7"
COURT OF QUEEN'S BENCH OF ALBERTA
CIVIL JURY PRACTICE NOTE
April 1, 1995
This Practice Note supplements Rules 234 to 241 (inclusive).
A. The Application
1. The entitlement of a party to have an action tried by a jury is governed by the Jury Act, S.A. 1982, c. J-2.1, as amended. For the purposes hereof section 16 is significant and a copy of that section is appended to this practice note as Schedule "A".
2. The affidavit in support of an application for a civil jury shall address the issues raised by section 16 of the Jury Act and should also address the following issues:
(a) Will expert evidence be called?
(b) How many experts are expected to be called?
(c) On which areas of knowledge or experience will the experts be called?
(d) Will interpreters be required?
(e) How many court days will be required for the trial if a jury is ordered?
3. Applications for trial by jury shall be heard by the Chief Justice, the Associate Chief Justice or a Judge assigned by either to hear the application. On request the Chief Justice, the Associate Chief Justice or the assigned Judge will, in consultation with counsel, fix a time for the hearing of such an application.
4. An application for a civil jury trial shall be brought before the action is entered for trial, in other words, before a Certificate of Readiness is filed or the action is entered for trial by Order of the Court pursuant to Rule 236(3).
B. The Order
5. Upon a trial being directed to be with a jury (Rule 234) and upon payment of the deposit being made (Rule 241) the Clerk shall give notice thereof to the Trial Coordinator. Failure to make deposit within 10 days of the date on which the direction is made (Rule 241(1)) will be strictly enforced and may result in revocation of the direction for a jury trial.
6. The Trial Coordinator shall not assign trial dates until:
(a) the Clerk gives notice of payment of the deposit; and
(b) the matter is entered for trial by the filing of a Certificate of Readiness (Rule 236.1) or by Order of the Court (Rule 236.3).
7. Within three months of the direction that an action be tried by civil jury a Pre-trial Conference shall be held. Further Pre- trial Conferences may be held from time to time as deemed necessary by the Pre-trial Conference Judge, the Trial Judge or the Chief Justice.
8. The Order directing that a trial be by civil jury shall set the number of days the Trial Coordinator is to reserve for the trial, which may be amended, if necessary, from time to time by a Pre-trial Conference Judge.
C. Pre-trial Functions
9. (a) In addition to the normal duties and obligations of the Pre-trial Conference Judge in an action in which a trial with a jury is directed, the Pre-trial Conference Judge will discuss with counsel the following and such other matters as appear required or useful and will make such recommendations, directions and orders as the circumstances warrant, namely:
(i) The possibility of challenges with respect to jury selection under section 11(2) of the Jury Act.
(ii) Applications under Rule 252 or Rule 253 (for inspection of property).
(iii) Whether and for what period of time sequestration of the jury may be requested.
(iv) The areas of agreement and disagreement as to trial procedure, e.g., the use of discoveries, affidavits, amendment of pleadings, etc.
(v) The factual and legal issues to be resolved by the trial.
(vi) The matters and issues to be put to the jury for resolution. Are briefs of law required? Included would be legal issues generally, issues of damages, discount rates, and income tax ramifications.
(vii) The need of counsel assistance in preparing questions for the jury and the general form of the jury charge including briefs of law where required.
(viii) Amendments to pleadings or other Court direction needed to conform or deal with actions or remedies contained in the pleadings but not appropriate for trial by jury such as corporate issues, equitable causes of action and relief, etc.
(ix) Issues of costs which may arise during trial caused by extended sittings, the need to take a view, payment in or offers of settlement, retrials, etc.
(x) Other matters that the Pre-trial Conference Judge or counsel may consider appropriate to assist in the expeditious conduct of the trial.
(b) Throughout the pre-trial process counsel and the Pre-trial Conference Judge will continue to monitor the proceeding in the light of section 16 of the Jury Act and will from time to time consider whether the mode of trial as trial by jury continues to be appropriate. If the Pre-trial Conference Judge is of the opinion that the trial is no longer appropriate for trial by jury then the Pre-trial Conference Judge may direct that the action be tried without a jury.
10. Counsel will meet with the assigned Trial Judge as directed by the Pre-trial Conference Judge or in any event not later than 6 weeks before the trial to discuss arrangements for the orderly proceeding of the trial. The Trial Judge will consider with counsel the various matters considered under paragraph 9 hereof and give such directions and make such orders as the circumstances warrant.
D. Fees and Charges
11. (a) At the present time, the deposit required by the Clerk is as follows:
(i) A fee of $1500 will be charged to cover the cost of convening a panel for jury selection and
(ii) A fee of $150 per day of scheduled trial time will be charged to cover the cost of babysitting and child care, transportation services and incidental juror expense and
(iii) A fee of $50 per juror per day of scheduled trial time will be charged as juror fees for the first week of trial and $75 per juror per day thereafter.
(b) If the deposit paid is or becomes insufficient to meet the fees referred to in subparagraph (a) hereof or if other payments required by Trial Judge or the Clerk to be made are not made, the Trial Judge may discharge the jury and may continue the trial as a non-jury trial.
SCHEDULE "A"
16(1) Subject to subsection (2), on application by a party to the proceeding, the following shall be tried by a jury:
(a) an action for defamation, false imprisonment, malicious prosecution, seduction or breach of promise for marriage,
(b) an action founded on any tort or contract in which the amount claimed exceeds $10,000, or
(c) an action for the recovery of property the value of which exceeds $10,000.
(2) If on a motion for directions or on a subsequent application it appears that the trial might involve
(a) a prolonged examination of documents or accounts, or
(b) a scientific or long investigation,
that in the opinion of a judge cannot conveniently be made by a jury, the judge may, notwithstanding that the proceeding has been directed to be tried by a jury, direct that the proceeding by tried without a jury.
(3) In this section, "proceeding" includes a counterclaim.
Schedule "A"
CERTIFICATE OF READINESS
No.
Plaintiff,
Defendant(s).
We the solicitors for the parties each certify that -
1. (a) All pleadings, discoveries, interlocutory proceedings, and expert examinations that each of us intends to do or have done have been completed.
(b) Notices to admit and statements in response thereto if made and notices to produce and affidavits of documents in response thereto if demanded have been filed and served or the failure of any party with respect thereto has been authorized by leave of the Pre-trial Conference Judge.
2. All undertakings to each other have been performed.
3. All of us and our clients are ready to proceed to trial.
4. No one of us will hereafter initiate any pleadings, discoveries or interlocutory proceedings without leave of the Court.
We each state as follows -
1. Nature of the Action -
2. Relief Claimed by Plaintiff -
3. There is/is not a counterclaim for -
4. There are/are not other parties as follows -
5. We have considered together the possibility of admitting facts and -
(a) No admission is possible, or
(b) Admissions have been made and filed with the Clerk.
*6. (a) Expert Reports have been obtained?
Yes _____ No _____
Expert Reports will be obtained? Yes _____ No _____
(b) If yes numbers? (c) By whom? (d) Concerning? (e) Copies given to other party? Yes _____ No _____ (f) Copies filed for Court's use? Yes _____ No _____
7. Issues in Dispute are -
(a)
(b)
(c)
8. (a) We expect to call witnesses as follows and the duration of the calling of evidence will be -
| WITNESSES | ORDINARY | EXPERT | ||
| Plaintiff |
Plaintiff's case _____days |
|||
| Defendant |
Defendant's case _____days |
|||
| Others |
_____days |
* Note Section 10 of the Alberta Evidence Act. It addresses the issue of the number of expert witnesses who may be called at any trial.
8. (b) We expect to argue as follows and that the duration of argument will be:
Plaintiff's case _____ hours
Defendant's case _____ hours
Others _____ hours
8. (c) We expect the total trial time to be _____ days. 9. (a) In family law cases (except undefended divorces), trials expected to last more than 5 days and civil jury trials, a pre-trial was held before Justice _______________ on _______________ .
OR(b) This trial is expected to last for 3, 4 or 5 days and is not covered by paragraph 9(a) hereof. The following date has been set by the Trial Coordinator after discussion with counsel for the Pre- trial Conference in this case.
Date: _______________
10. (a) In the event that, following consultation with the Clerk or Trial Co-ordinator, counsel expect the trial to be scheduled within the next 6 months, the following days in the next 6 months or other period in which the trial is likely to be scheduled would not be suitable for trial
Plaintiff -
Defendant -
Other -
OR
(b) This matter has been pre-booked for trial to commence the ____________ day of _______________19 ___________.
11. Counsel for each of the parties will be -
|
NAME |
ADDRESS |
PHONE |
Plaintiff
Defendant
(a)
(b)
(c)
Third and other parties
12. (In the case of a Civil Jury Trial)
By an Order dated the ____________day of _________19____
this matter is to be tried by Judge and Jury.
Dated at ____________ in the Province of Alberta
this ____________ day of ____________ 19 ____.
Solicitor for Plaintiff _____________________________________
Solicitor for Defendant _____________________________________
Other Defendants _________________________________________
CONDITIONAL CERTIFICATE OF READINESS
This Certificate of Readiness is a Conditional Certificate of Readiness authorized for filing with the Clerk of the Court by leave of the Pretrial Conference Judge whose fiat is endorsed hereon. The conditions and performance dates are as follows:
| CONDITION |
TO BE PERFORMED |
1.
2.
3.
4.
Let this Conditional Certificate of Readiness be filed.
J.
Date:
COURT OF QUEEN'S BENCH OF ALBERTA
APPLICATIONS WITHOUT PERSONAL APPEARANCE
April 1, 1995
A. Ex Parte and Consent Applications
Counsel may apply for ex parte or Consent Orders without personal appearance. Applications so made will be placed before a Judge by the Clerk and returned by the Clerk to counsel with the Order signed and entered or a note setting forth the grounds for rejection. The following practice rules will apply to such applications:
1. Counsel will file the appropriate material in support with the Clerk.
2. Counsel will complete an application in the form attached.
3. (a) Counsel will supply to the appropriate Chambers Clerk the usual material in support of the application together with the application form and any other material that counsel wishes to put before a Judge. The materials should be securely bound together.
(b) The Chambers Clerk is the Chambers Clerk for the Judicial District in which the application ought to be made.
4. When the application is made at a centre at which a Judge is not then sitting, the Clerk will on request by counsel forward the material to a Duty Judge.
B. Contested Telephone Applications
[This part of the Practice Note is supplemental to Rule 385.1.]
Counsel may apply to a Duty Judge on notice for Orders by telephone.
The following practice will apply:
1. The appropriate Judicial District for these applications is the Judicial District in which the application should be made according to the Rules.
2. This procedure may not be employed where all solicitors practice in the same city as one another and where there are resident Queen's Bench Justices in that city.
3. Each party to the application must consent to a telephone application and the Clerk of the Judicial District in which the proceedings are being carried on will, on request of counsel, arrange a time for the telephone call.
4. The counsel for each party to the application and the Clerk shall participate in the telephone application to the hearing Judge.
5. All material normally filed in respect of an application shall be filed in the usual way. Material filed will, unless otherwise directed by the hearing Judge, be faxed by the Clerk to the Judge to be available for the hearing.
6. The Clerk assigned for this purpose will have before him all the material.
7. Any solicitor involved in the application who practises in a judicial centre in which the application is being made shall attend at the office of the Clerk in the judicial centre to make the application.
8. The Clerk shall originate the telephone call at the appointed time.
9. The Court may designate the time at which an application shall be made.
C. Emergencies
10. Where emergency conditions exist a Judge may dispense with meeting any of the requirements of these directions, save the direction that a Clerk must be a party to the telephone call.
D. Jurisdiction
Where in this Practice Note reference is made to a Judge, such reference includes a Master with respect to any matter that is within his jurisdiction.
EX PARTE APPLICATION
1. Q.B. No:____________________ Date: ______________________
2. Style of Cause: _______________________________________
v.
_______________________________________
3. Applying for: Order for:
OR
Fiat for:
4. Name of Solicitor: ______________________________________
(Please Print)
5. Name of Firm: ______________________________________
______________________________________
6. Applicant's submission shall be made on reverse.
FOR CLERK'S USE
Signed: ______________________________
Granted: ______________________________Comments:
Not Granted: ______________________________
Judge: ______________________________
COURT OF QUEEN'S BENCH OF ALBERTA
SPECIAL CHAMBERS APPLICATIONS
Effective April 1, 1998
A. General - Applying to all Chambers Applications
1. (a) References in this Practice Note to the Chambers Clerk means
(i) in Calgary, the Judges' Chambers Clerk with respect to matters to be heard in Special Chambers applications and the Trial Coordinator with respect to matters to be heard on the Civil Trial List;
(ii) in Edmonton, Red Deer and Lethbridge, the Trial Coordinator;
(iii) elsewhere, such court official as the Clerk of the Court shall designate.
(b) A Special Chambers application is a contested Chambers application other than a family law matter likely to take longer than 20 minutes to argue but not longer than a half day. Matters likely to require more than a half day for argument shall be placed on the Civil Trial List.
2. Viva voce evidence may be adduced on the hearing of a Chambers application only with the prior leave of the hearing Judge on notice if appropriate to the other parties involved.
3. Hearing times for Special Chambers applications will be assigned on request by the Chambers Clerk.
4. When filing a Notice of Motion for a Special Chambers application returnable on the assigned date, counsel filing it shall indicate an estimate of the time required for argument. Counsel applying for adjournment of applications from regular Chambers to Special Chambers or to the Civil Trial List should first obtain a hearing date from the Chambers Clerk. Thereafter counsel should apply for the adjournment and advise the Chambers Clerk forthwith on the granting of the adjournment.
5. If an application in respect of which a Notice of Motion has been previously filed and served is adjourned to an assigned date, the Applicant's counsel shall forthwith serve all interested parties with written advice of the fact that the matter has been converted to a Special Chambers application and give the assigned date. If no previous Notice of Motion has been served, the Applicant's counsel shall forthwith file a Notice of Motion and supporting Affidavit returnable on the assigned date and serve a copy of it on all interested parties.
6. (a) Where briefs are required pursuant to paragraph 8(b) hereof if the Applicant's brief is not filed in time, the application will be struck automatically. The Chambers Clerk may then replace the struck matter with another application which does comply with the filing requirements.
(b) Where briefs are required pursuant to paragraph 8(b) hereof if a Respondent's brief is not filed in time, the application may proceed and the presiding Judge may order costs against the Respondent, or such other penalty as is deemed appropriate.
(c) If an Applicant wishes an application reinstated which has been struck because of non-compliance with the filing requirements and no other matter has been scheduled in its place, and in any case in which the Respondent wishes to file a brief late, an application may be made for leave to reinstate or to file late.
B. Special Chambers Applications
7. (a) Except in respect of applications to be made during the long vacation and the Christmas vacation, the Applicant's Notice of Motion, Affidavits, brief, and authorities shall be filed with the Chambers Clerk and served on the Respondent(s) at or before 4:30 p.m. on the third Friday before the week in which the assigned hearing date falls. A Respondent's brief and authorities shall be filed with the Chambers Clerk and served on the Applicant at or before 4:30 p.m. on the second Friday before the week in which the assigned hearing date falls.
(b) If the Friday on which a brief and authorities are required by this paragraph to be served is a holiday, the filing and service of the brief and authorities shall be done the day before the holiday.
(c) Filing and service of a brief and authorities in respect of applications to be made during or immediately following the long vacation or the Christmas vacation shall be done at the times and on the days as per subparagraphs (a) and (b) hereof but counting the vacation days (except Statutory holidays) as if they were Court sitting days.
8. (a) Short and concise written briefs by all parties shall be filed with the Chambers Clerk as hereinafter set forth.
(b) The brief of the Applicant will contain a written summary of the relevant facts involved in the application, the main points of law that will be argued and copies of all authorities relied upon with relevant portions highlighted. The brief of the Respondent will respond in like manner.
9. Applications for adjournment should be made to the Judge assigned to the application or, in the absence of or failing the assignment of that person, to a Duty Judge.
10. Notwithstanding paragraph 9, an adjournment sought more than 3 weeks prior to an assigned hearing date may, with the prior agreement of all parties, be obtained by telephone from the Chambers Clerk.
11. Without leave of the Judge assigned to the application or, in the absence of that person, a Duty Judge, counsel may not rely on briefs filed in respect of previous applications in lieu of new briefs, or file supplemental briefs or other materials after the deadline for filing and service of the party's material set out in paragraph 7.
C. Application to Judges' Chambers Only
1. This Practice Note applies to matters to be heard in Judges' Chambers but does not apply to matters to be heard in Masters' Chambers.
*PRACTICE NOTE NO. 7*
September 1, 1995
Note: This Practice Note has been replaced by Practice Note No 1 - Case Management. It continues to apply to cases which were subject to it prior to September 1, 2001 unless the case management judge has ordered that Practice Note No. 1 will apply. See Sections 57 and 58 of Practice Note No 1.
Purpose
This Practice Note and the accompanying amendments to the Alberta Rules of Court will introduce mandatory case management for trials likely to take more than 25 days of trial time. This new procedure is aimed at ensuring that maximum benefit is gained from each trial day, thereby making more efficient use of Court resources. It also aims at ensuring adequate and accurate amounts of time are reserved for trial.
To achieve these goals it adds to the requirements of regular case management to afford greater disclosure and control.
The central features are:
- parties to very long trial actions will be required to advise the Chief Justice or Associate Chief Justice that such an action has been commenced shortly after the close of pleadings so that the Court may determine when and whether it should be case managed pursuant to this Practice Note;
- each case will be governed by a timetable which may only be changed by an order of the case management judge;
- each case is assigned early in the proceedings to a case management judge who hears all aspects of the case down to trial; that judge may raise matters on his or her own initiative to facilitate efficient pretrial management and make resulting orders, after hearing from each party;
- a trial start date will be established at the initial case management conference but the case will later be entered for trial and the scheduled duration of the trial set by the case management judge, after receiving disclosure of witness's evidence summaries and early disclosure of expert evidence.
Application
1. The following procedure shall apply to all civil actions, including family law matters likely, in the opinion of one or more of the parties, to take 25 trial days ("the very long trial").
2. A claim, counterclaim, cross-claim, third or subsequent party claim, or any combination thereof becomes subject to this procedure when the combined trial time is likely, in the opinion of one or more of the parties or the Court, to exceed 25 days. Actions consolidated or ordered to be tried together or sequentially become subject to this procedure when the combined trial time is likely to exceed 25 days. Where a party is added to the action after a case management judge has been appointed, that judge shall adapt the provisions of this Practice Note as necessary and appropriate to apply to that new party.
3. For very long trial actions commenced after September 1, 1995, within two weeks from the filing of the first (or only) Statement of Defence, counsel for the Plaintiff shall write to the Chief Justice or Associate Chief Justice of the Court of Queen's Bench to advise that a very long trial action has commenced, and to request that a judge be appointed to manage the action (the "case management judge"). That letter shall be copied to all parties. It may name five possible judges from which the case management judge may be selected, if the parties are in agreement as to these names. If such a list is submitted, every reasonable effort will be made to appoint one of the judges named thereon.
4. Normally the same judge will case manage an action throughout but a substitute or replacement case management judge may be assigned where necessary.
5. Once a case management judge has been appointed under this procedure, the case remains subject to the procedure even where subsequent orders or events reduce the length of the trial to less than 25 days.
6. Where counsel for the Plaintiff fails to apply for the appointment of a case management judge pursuant to this Practice Note yet counsel for one or more of the other parties or any judge believes the action will likely take longer than 25 days to try, that counsel or judge may make the application upon notice to all other parties. In cases of dispute the Chief Justice or Associate Chief Justice shall determine whether or not the action shall be subject to this procedure.
7. If at any time it appears that an action not yet brought within this procedure may take more than 25 days to try, any party or any judge may apply for the appointment of a case management judge as provided in paragraph 3, irrespective of the stage of proceedings as of that date.
8. At any time prior to the appointment of a case management judge, any party may write to the Chief Justice or Associate Chief Justice, sending copies of that correspondence to all other parties, requesting that the action be exempt from the operation of this Practice Note, either indefinitely or until a stated stage in the action, giving reasons for the request; any other party may make representations in response. The Chief Justice or Associate Chief Justice may accede to this request for any reason which appears proper, and may determine when case management is to commence in the future. Upon such a determination being made, a case management judge will not be appointed until the time or circumstance determined by the Chief Justice or Associate Chief Justice.
9. The Chief Justice or Associate Chief Justice may refuse or delay the assignment of a case management judge to a very long trial action for any reason which appears proper, including limitations on availability of judges to engage in case management; when this occurs the action shall proceed as if it were not a very long trial action until such time as a case management judge is assigned to it.
10. For any action commenced prior to September 1, 1995, which is likely to result in a very long trial, the application referred to in paragraph 3 shall be made on or before January 1, 1996, irrespective of the stage of proceedings as of that date.
11. Where a case management judge is appointed after the action has proceeded beyond these initial stages, the case management judge shall hold a case management conference within 30 days of being assigned during which a determination will be made as to which portions of this Practice Note will apply to the management of that action.
12. The case management judge shall hear all interlocutory applications and shall conduct all pretrial and other conferences with the parties, but shall not hear the trial without the consent of all parties. Even where all parties consent, the case management judge shall not hear the trial where he or she does not believe it appropriate to do so. Where the case management judge determines that the hearing of a particular application may adversely affect his or her ability to hear future applications or manage the action generally, he or she may direct that application be made before another judge. Also, where the case management judge's time availability would result in unacceptable delay, he or she may arrange to have another judge to hear certain matters.
13. A very long trial shall be set to be tried by judge and jury only by order made by the case management judge, who shall be considered to be the designate of the Chief Justice or Associate Chief Justice for this purpose, as directed by Civil Practice Note 2.
Scheduling Conference
14. Within 30 days of a case management judge being assigned, the Plaintiff's counsel will contact that judge and all other counsel to arrange a scheduling conference; the purpose of this conference is to determine a coherent plan to process the action in a timely and reasonable fashion ("the case timetable") and to deal with any matters of a procedural nature which should be addressed at an early stage of the proceedings.
15. The scheduling conference and all subsequent conferences will be held in the case management judge's private chambers unless any non-lawyer is expected to attend, or upon the direction of the judge, whereupon it will be held in a courtroom. The date and time of each will be selected to accommodate the case management judge's availability.
16. Counsel will be expected to have conferred among themselves, prior to the scheduling conference, for the purpose of preparing a case timetable.
17. At least ten days prior to the scheduling conference, counsel for the Plaintiff shall complete, file and serve on all other parties a draft case timetable in the form of Appendix A; any other counsel who takes issue with any information contained in the timetable must file and serve a separate draft case timetable no later than two days prior to the scheduling conference. All draft case timetables shall be copied directly to the case management judge.
18. During the scheduling conference the case management judge will set a case timetable for all future steps which must be complied with unless a time extension or other variation is expressly granted. Once signed and circulated to the parties it becomes an order of the Court. The case timetable shall be set in the discretion of the case management judge and may include directions as to steps and times not specifically requested by counsel. Specifically, it may address:
(a) setting a date for completion of each step in the action;
(b) setting a date for production of documents;
(c) establishing a mechanism for the production or description of documents where their number, nature or location make description in the normal course unduly expensive or cumbersome;
(d) setting a date for the commencement of examinations for discovery and defining the nature and scope of same;
(e) setting a target date for the exchange of the experts documents, which date shall be in advance of the case conference relating to any application to determine the scheduled duration of the trial, pursuant to paragraph 40 below;
(f) setting a date for the next case management conference;
(g) setting a start date for the commencement of the trial, after consultation with the trial coordinator;
(h) enlarging or abridging any time appointed by the Rules of Court relating to time for doing any act or taking any proceeding, as required to implement the provisions of this Practice Note, pursuant to Rule 548; and
(i) giving directions to deal with any problem that may arise in connection with carrying out the purpose of the Rules and this Practice Note.
19. Where a start date for the commencement of the trial is thus set, barring unusual circumstances the trial will start on that date.
20. At any stage of the proceedings the case management judge may require any counsel to give express information to his or her client about any aspect of the action or may require that counsel to invite his or her client to personally attend any future case management conference.
21. Where a party fails to comply with a timetable or any service requirement or with any requirement of this Practice Note, the case management judge may take any of the following steps, upon his or her own initiative or upon being requested to do so after notice to all parties and after hearing representations from any party who wishes to make same:
(a) convene a case management conference;
(b) amend the timetable and order the party to comply with the amended timetable;
(c) order that the party be precluded from raising certain issues or relying on certain types of evidence at trial;
(d) dismiss the party's action or strike out the party's defence;
(e) order the party or the party's counsel to pay costs, including solicitor and client costs or any other form of costs allowed by the Rules, fixed and payable forthwith;
(f) direct that notice be given to the clients involved in the case; and
(g) make any other order that is just.
22. Unless otherwise ordered, the counsel representing a party at the scheduling conference or any subsequent case management conference shall be the counsel who will be representing that party at the trial or an informed substitute. That counsel shall have obtained clear and definite instructions from the party regarding counsel's authority to deal with all matters that the participants may reasonably anticipate may be discussed at the conference. No non-party may attend any conference except with the consent of all of the parties.
Case Management Conferences
23. The purpose of a case management conference is to monitor the progress of the matter, to canvass settlement or other disposition of all or as many of the issues as possible, and to provide whatever directions as may be necessary or appropriate with respect to the disposition of the matter. Specifically, at any case management conference the case management judge, after hearing from the parties, may take action with respect to any matter which appears appropriate, including but not limited to:
(a) the formulation and simplification of the issues;
(b) the necessity or desirability of amendments to pleadings;
(c) the disposition of pending motions;
(d) the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems;
(e) the advisability of a reference;
(f) the advisability of having the Court appoint an expert;
(g) issues relating to expert evidence as required by paragraph 25; and
(h) the start date for trial.
24. Counsel for the Plaintiff or Petitioner shall arrange a case management conference with the case management judge and all parties within one month after each party has been examined for discovery once, whether or not that examination was completed that day, or upon such date as set in the case timetable.
25. Expert evidence shall be canvassed at this case management conference. Counsel will advise of the type of expert evidence they will lead, the likely identity of any expert witness to be called and the evidence hoped to be established from that witness. The purpose is disclosure of the nature and type of expert evidence to be led, to allow parties opposite in interest early selection and organization of their own expert evidence and to avoid surprises at the conference to set the scheduled trial duration. The case management judge will finalize the date by which all experts reports are to be exchanged (the target date will have been set at the initial scheduling case management conference), which shall be at least 90 days in advance of the case management conference to set the scheduled duration of the trial, required in paragraph 40.
26. At this or any other case conference, the case management judge may hear any applications for orders concerning the pretrial examination of experts.
27. At this or any other case conference, the judge shall analyze the proposed expert evidence and attempt to obtain agreement from all parties which would facilitate the admission of that evidence or shorten the trial, including:
(a) evidence which may be admitted by consent;
(b) evidence which may be admitted by affidavit, without the need to call the expert to testify; and
(c) agreements among parties with a common interest in the subject-matter of the action to rely upon the same expert in a given area.
28. A case management judge may make any orders, impose terms and give directions as necessary to carry out the purpose of this Practice Note, including:
(a) adjourning a case management conference from time to time;
(b) requiring that any party, or if the party is a corporation, the party's representative, attend all or part of the conference together with counsel;
(c) requesting that any other person, whose attendance may be of assistance, be present at all or part of the conference;
(d) directing that experts, who have been retained by the parties and who are expected to testify at trial, confer on a without prejudice basis to determine those matters on which they agree and to identify those matters on which they do not agree;
(e) ordering that the parties file and exchange written briefs where not otherwise provided by this Practice Note, for the use of the case management judge, including specifics as to the content and length of the written briefs and the date by which they are to be filed and exchanged; and
(f) ordering, with the consent of all parties, that certain evidence be given at trial by affidavit:
(i) without the need to call oral evidence, or
(ii) with the witness being presented for oral cross- examination only.
29. An order shall be entered or a memorandum be filed at the direction of the case management judge, reciting action taken or ordered to be taken and issues resolved at the conference, and such order shall control the subsequent course of the action unless modified by a subsequent order. Any order made by the case management judge may be modified at the trial to prevent injustice.
30. The case management judge may initiate a hearing, case management conference or conference call to deal with any matter arising in connection with case management, including a failure to comply with this Practice Note or the Rules of Court; however, prior to making any order resulting from the case management judge's own initiative, he or she will give all parties a full opportunity to make representations.
31. Other case management conferences may be held at any other time during the proceeding, including before, during or after any examination for discovery, upon the direction of the case management judge acting on his or her own initiative or where the parties consent or upon the successful application by one of the parties.
32. The case management judge may, at any stage, require any counsel to confirm that his or her client has been provided with notice of any case management conferences or settlement conferences or copies of any memoranda or orders resulting from same.
33. At any case management conference prior to the action being set down for trial any party may apply for an order that certain issues be tried separately and prior to the trial of others, where appropriate. For example, liability may be ordered tried separately from damages in an appropriate case. Where such an order is granted, the case management judge shall establish separate case timetables for each portion of the case to be tried separately. The provisions of this Practice Note will then apply to each separate case timetable.
34. The case management judge is not a compellable or competent witness. Other than as expressly provided elsewhere in this Practice Note, no communication shall be made by anyone to the trial judge or in later proceedings as to the proceedings or communications at any conference except:
(a) as disclosed in the order or orders of the case management judge;
(b) as agreed to by all parties or their counsel; or
(c) as required by any standard form of memorandum adopted by the Court of Queen's Bench.
35. At any case conference where it appears that the only reason for calling evidence is to rebut a possible adverse inference, the case management judge may order the evidence not be called; such an order will be entered and form part of the Record; Plaintiff's counsel shall expressly draw the attention of the trial judge to it at the commencement of the trial.
Interlocutory Applications
36. If urgent, a case management conference may be held or interlocutory application made with or without filed supporting material, and by attendance, conference call, telephone call, telefax, or in writing, and upon such notice as directed by the case management judge.
37. Matters expected to take 30 minutes or less will generally be dealt with by the applicant making a request by telephone to the secretary of the case management judge; that judge will then set a time to resolve the matter in private chambers (usually outside normal sitting hours) at a mutually convenient date. Matters likely to take longer than 30 minutes or which counsel believe should be dealt with in an open courtroom should be set before the case management judge via the trial coordinator booking time before that judge in the normal course.
38. The case management judge will attempt to be available on reasonable notice, to deal with any matter which may arise. It is expected that counsel will be prepared to demonstrate any claimed urgency. It must be remembered that the fixed schedules, including out-of-town assignments, of the case management judges will continue unchanged.
Confidential Dispute Resolution
39. Where two or more parties to an action wish to resolve a dispute which arises between themselves on any procedural point which affects only themselves, and about which they do not wish to advise parties opposite in interest, the disputing parties may apply before a judge other than the case management judge. The judge hearing the application will resolve it, or give directions for its resolution.
Scheduling Trial Duration
40. A very long trial may be entered for trial only by order granted by the case management judge at a case management conference. A start date for the trial will have been established in the scheduling conference. However, at least 9 months in advance of that date a case conference must be held where that start date is considered, and a time set for the duration of the trial. For this case conference each party shall prepare and serve a memorandum in the form set out in Part 1 of Appendix B at least 30 days prior to the date it is to be held. Within 10 days of being served with a memorandum, each party shall complete the sections relating to estimated time needed for cross-examination of each proposed witness, and serve and file the completed document. The completed form shall attach:
(a) all experts documents and replies to experts documents, including experts reports and any affidavits any party intends to rely upon at trial, as required by Rule 218.5;
(b) all affidavits containing expert evidence where such evidence has been ordered to be tendered in that form;
(c) copies of any documents relevant to the expert's opinion which are referred to in that expert's report, as requested by the case management judge;
(d) the estimated length of time needed for the examination in chief of each witness; and
(e) the estimated length of time needed for the cross-examination of each witness, as provided by each party expected to cross-examine.
The case management judge will automatically cancel and reschedule the application if he or she has not received a memorandum from each party by this deadline. However, if any rescheduling takes this conference closer than 9 months to the target start date of the trial, that date may be lost. Nothing in this Practice Note requires any party to disclose the existence of any witness called solely to impeach credibility nor that any witness otherwise called will also impeach credibility but where counsel intends to call such a witness, the general time estimate given in Appendix B, Part 1, paragraph N shall include that counsel's time estimate of the time needed for examination and cross-examination of same.
41. Counsel should limit the length of materials filed so that the materials of all parties can be read quickly. Counsel should indicate which of the materials should be read and which are filed only as reference material. Passages of special importance should be highlighted.
42. The case management judge alone will then finalize the number of days to be reserved for the trial after a consideration of the material and submissions of counsel and after making a personal assessment of the time needed to try the matter, considering the number of witnesses including expert witnesses, the nature of the evidence proposed, the issues, and all other relevant matters.
43. At the conclusion of this conference, the case management judge shall complete Part 2 of Appendix B, recording his or her assessment and conclusions and will provide it to the trial coordinator for use in scheduling the trial; Part 1 of Appendix B and all attachments shall be returned to the parties.
Final Case Management Conference
44. A final case management conference may be scheduled after the action is set for trial, not earlier than five months before the start of the trial.
At this time the case management judge may order:
(a) the production of updated information on damages only, including updated expert material;
(b) final examination for discovery to update damage information only; or
(c) anything necessary to facilitate or expedite the trial.
Appeals
45. The taking of an appeal from any order granted by a case management judge shall not stay or otherwise affect that order or any other order, direction or decision except as may be subsequently directed by the case management judge, the Chief Justice or Associate Chief Justice of the Court of Queen's Bench or any judge of the Court of Appeal of Alberta, made on notice to and after hearing from all parties.
Settlement
46. In any case management conference the case management judge may consider and discuss with the parties and may make suggestions to the parties with respect to:
(a) the possibility of settlement of any or all of the issues in the proceeding;
(b) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof, agreements regarding the authenticity of documents, and advance rulings from the Court on the admissibility of evidence;
(c) the possible use of extrajudicial procedures to resolve the dispute;
(d) the question of liability;
(e) the amount of damages, where damages are claimed; and
(f) any other matters which may aid in the disposition of the action.
47. If the action is settled, counsel will be expected to notify the case management judge at once, in writing.
48. Prior to the commencement of the trial, one or more settlement conferences shall be held before the case management judge or, with his or her approval, any other judge selected by the parties. The purpose of this conference is to settle some or all of the issues in the action. If only some of the issues are so resolved, a statement of resolved issues will be prepared for use by the trial judge.
49. Where a settlement conference is conducted, counsel shall ensure their clients are available at the Courthouse in order to give instructions; for corporate clients, those attending must have authority to enter into a settlement binding on that party, should one be reached.
Trial
50. Unless otherwise ordered by the trial judge in exceptional circumstances, written argument will be received only if it is submitted no later than 21 days after the conclusion of oral argument or so soon thereafter as the trial judge may direct.
Penalties
51. Upon the happening of any of the following events:
(a) a party or party's counsel fails to obey a conference order;
(b) no appearance is made on behalf of a party at a conference;
(c) a party or party's counsel is substantially unprepared to participate in the conference;
(d) a party or party's counsel acts in bad faith;
(e) an application to set a matter for trial is heard notwithstanding the absence of adequate or any pretrial memoranda; or
(f) the trial exceeds 25 days in length, (whether or not it is set to take less than this time), yet no request was made for the appointment of a case management judge pursuant to this Practice Note,
the case management judge, the trial judge or any other judge, upon application or on his or her own initiative, may make such orders with regard thereto as are just, including any of the orders provided in Rule 704(1)(d). In lieu of or in addition to any other order, any such judge may require the party or counsel representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this Practice Note, including counsel's fees.
52. Where, in the opinion of the case management judge, the conduct of one or more of the parties prior to trial has significantly and unnecessarily affected the length of time needed for trial, or has created significant avoidable delay between the close of pleadings and the start of the trial, that judge may so advise the parties and trial judge by written memorandum to be read by them only at the conclusion of the trial but prior to the setting of costs.
General
53. The computation of all time periods referred to in this Practice Note excludes Saturdays, Sundays, holidays, the long vacation, and the Christmas vacation.
54. The judges wish to ensure that the procedures in this Note are fair, reasonable and consistent with its purposes. Counsel will accordingly be expected to advise the Chief Justice or Associate Chief Justice or one of the judges involved in case management should there be any problems encountered with the procedures set up in this Note.
55. Except where inconsistent with this Practice Note the provisions of Practice Note 3 apply to the very long trial.
56. Where any portion of this Practice Note refers to a Rule not yet in force, that portion shall be interpreted and applied by the case management judge to achieve the goals of this Practice Note, within the mandate of the Rules which are in force.
APPENDIX A
CASE TIMETABLE
(para. 17)
(Form to be Adapted as Necessary: references in brackets to paragraphs in Very Long Trial Practice Note)
A. Short Title of Proceedings and Action Number:
B. Counsel Representing Each Party:
Plaintiff:
Name __________________________________
Address ________________________________
Telephone Number ____________
Telefax Number ______________
Mailing Address of Party ___________________________Defendant:
Name __________________________________
Address ________________________________
Telephone Number ____________
Telefax Number ______________
Mailing Address of Party ___________________________(and so on for each other party)
C. Dates by which each of the following steps are to be completed - specify nature and responsibility. Ensure that sufficient time is allowed to accomplish the step.
Date for application re production of documents, and to establish a mechanism for same: ________________________ (para.18(b) and (c))
Date by which examination for discovery is to commence for each party: _________________________ (para.18(d))
Date for case management conference after each party is examined for discovery once: _________________________ (para.23)
Date for case management conference re potential expert evidence: _________________________ (para.24)
Target Date for exchange of experts reports: ______________________ (para.18(e))
Date by which all undertakings are to be answered: _________________________
Date for application for any orders permitting further discovery, and setting scope of further discovery: _________________________
Date by which all examinations for discovery, including any examinations on answers to undertakings, are to be completed: _________________________
Target Date for conference confirming entry for trial and setting number of days for trial: _________________________ (para.40)
Target Date for Start of Trial (para.18(g)) _________________________
Nature and Target Date for Each Remaining Interlocutory Application:
1.
2.
3.
4.
5.
etc.
Date for the next case management conference:
Signed:
_______________________________
Counsel for PlaintiffDisposition made by case management judge:
___ approved as above
___ approved with the following amendments:
________________________________
(Conference Judge)
APPENDIX B
PART 1
PRETRIAL MEMORANDUM
(Adapt Form as Necessary to Accommodate All Parties and All Witnesses. NOTE: Shaded portions to be completed by counsel opposite in interest. )
A. Short Title of Proceedings and Action Number:
B. Counsel Representing Each Party:
Plaintiff:
Name __________________________________
Address ________________________________
Telephone Number ____________
Telefax Number ______________Defendant:
Name __________________________________
Address ________________________________
Telephone Number ____________
Telefax Number ______________(and so on for each other party)
C. Brief statement of circumstances of occurrence, events or transactions which led up to claim:
Plaintiff's view:
Defendant's view:
(add other parties as necessary)
D. The issues and defence in this action are as follows (identify and discuss in 50 words or less each):
E. The relief claimed by the Plaintiff is as follows:
F. There is/is not a counterclaim for the following relief:
G. There is/is not a claim(s) for contribution or indemnity as follows:
H. The following possible amendments to pleadings should be considered:
I. The following interlocutory applications are yet to be made:
J. Examinations for discovery are complete and all undertakings have been answered, except as follows:
(Note: if any substantial exception is listed, an order setting the action for trial will not likely be granted.)
K. All of the dates established in the original or amended Case Timetable have been met except as follows (give reasons for failure to meet date):
L. The party filing this memorandum expects to call the following witnesses (including rebuttal witnesses but excluding expert witnesses) to give the following evidence:
1. Name of witness:
Brief summary of expected evidence:
ESTIMATE OF TIME NEEDED FOR EXAMINATION IN CHIEF OF THIS WITNESS:
ESTIMATE OF TIME NEEDED FOR CROSS-EXAMINATION OF THIS WITNESS BY EACH PARTY OPPOSITE IN INTEREST:
Plaintiff :
Defendant :
Third Party :
(and so on for each anticipated witness)
M. The party filing this memorandum expects to call the following expert witnesses (including expert witnesses which may be called in rebuttal). Attached as Schedule 1 to this Memorandum are copies of all Experts Documents, Replies to Experts Documents, experts reports, and affidavits, if any, containing expert evidence upon which reliance will be made at trial:
1. Name of witness:
Topics upon which I will apply to qualify him/her as an expert:
ESTIMATE OF TIME NEEDED FOR EXAMINATION IN CHIEF OF THIS EXPERT:
EACH PARTY OPPOSITE IN INTEREST ESTIMATES IT WILL NEED THE FOLLOWING TIME TO CROSS-EXAMINE THIS WITNESS:
Plaintiff :
Defendant :
Third Party :
(and so on for each anticipated expert witness)
N. The amount of time I anticipate needing to lead my evidence in chief ___________________, for rebuttal __________________ and for argument _______________________________________________.
O. My best estimate of the total amount of time needed to complete the evidence (including cross-examination and rebuttal) and the argument by all parties:
P. The following preliminary applications may be made by me at trial:
Estimated time needed for these preliminary applications:
Q. Where the relief sought is damages, a list of all special damages claimed is attached as Schedule 2. The other heads and amounts claimed for damages are as follows:
R. The following judges may be disqualified from hearing this trial:
S. Other matters relevant to the trial time needed, or to the conduct of the trial which have not been covered above are as follows:
Dated at _______________, Alberta on _____________ (insert date).
_______________________________
Counsel for the
Plaintiff/Defendant/Other
APPENDIX B
PART 2
REPORT OF THE CASE MANAGEMENT JUDGE
(TO BE COMPLETED BY THE CASE MANAGEMENT JUDGE; Adapt Form as Necessary)
A. The issues and defences in this action are as follows:
B. The relief claimed is as follows:
C. My estimate of the total time needed to examine and cross-examine each anticipated witness is as follows:
[NOTE: THESE TIME ESTIMATES ARE TO BE ARRIVED AT BY THE CASE MANAGEMENT JUDGE AFTER REVIEW OF THE ANTICIPATED EVIDENCE OF EACH WITNESS AND THE EXPERTS REPORTS - TAKE INTO ACCOUNT COUNSEL'S ESTIMATES OF TIME AND ADAPT TO REFLECT YOUR PERSONAL ASSESSMENT OF TIME NECESSARY - THESE ARE THE CASE MANAGEMENT JUDGE'S OWN INFORMED ESTIMATES, BASED ON ALL OF THE INFORMATION PROVIDED IN PART 1 OF THIS SCHEDULE AND HIS OR HER OWN KNOWLEDGE OF THE ACTION, GAINED THROUGH OVERALL CASE MANAGEMENT.]
Plaintiff (Insert Name): _________________________
Witness #1: Time for examination in chief: _____________________
Total time for cross-examination by all parties opposite in interest:
Witness #2: Time for examination in chief: _____________________
Total time for cross-examination by all parties opposite in interest:
(and so on, for each ordinary and expert witness to be called by this Plaintiff)
Defendant (Insert Name): _________________________
Witness #1: Time for examination in chief: _________________
Total time for cross-examination by all parties opposite in interest:
Witness #2: Time for examination in chief: _____________________
Total time for cross-examination by all parties opposite in interest:
(and so on, for each ordinary and expert witness to be called by this Defendant)
Third Party (Insert Name): _________________________
Witness #1: Time for examination in chief: ______________________
Total time for cross-examination by all parties opposite in interest:
Witness #2: Time for examination in chief: ____________________
Total time for cross-examination by all parties opposite in interest:
(and so on, for each ordinary and expert witness to be called by this Third Party)
[ADD SIMILAR SECTIONS FOR EACH OTHER PARTY TO THE ACTION]
D. My informed estimate of time needed for any anticipated rebuttal evidence, including examination in chief and cross-examination of all parties:
E. My informed estimate of the time needed for any anticipated preliminary or other applications made during the course of the trial:
F. My informed estimate of the time needed by each party to argue orally is:
Plaintiff (Insert Name):
Defendant (Insert Name):
Third Party (Insert Name):
(and so on for all other parties)
G. My informed estimate of the time needed by the Plaintiff to orally reply:
H. My informed estimate of the number of extra days required to cover unanticipated exigencies: ______________________________________
I. MY TOTAL ESTIMATE OF THE TIME NEEDED FOR THIS TRIAL (TOTAL OF ABOVE ESTIMATES): _________________________ days
J. The following judges are disqualified from hearing this trial:
K. The following special arrangements are requested for the handling of documents, holding demonstrations, etc. during the trial:
L. Other matters relevant to the trial time needed, or to the conduct of the trial which have not been covered above are as follows:
Dated at ________________, Alberta on ____________ (insert date).
_______________________________
(Case Management Judge)