Increased civil claims Court limit: Consideration of Litigation Strategies in Alberta

In a move to better facilitate Albertans' access to justice, the provincial government has increased the small claims limit from $50,000 to $100,000.

This pending increase introduces new differences between the Court of King's Bench of Alberta and the Alberta Court of Justice that parties will need to be aware of when considering litigation strategies appropriate to each court.

Section 9(1)(i) of the Court of Justice Act (formerly the Provincial Court Act) and section 2 of the Provincial Court Civil Procedure (the Regulation) were amended by a bill in December 2022, increasing the prescribed amount of the Alberta Court of Justice's jurisdiction to allow a maximum of $200,000.^[1] However, after surveying the courts and the legal community, the provincial government ultimately selected a new civil claim limit of $100,000 on April 5, 2023. This limit increase from $50,000 to $100,000 will be effective on August 1, 2023.

The following bulletin provides an overview on the different impacts the new limit has on each court, and assesses the potential impacts on clients and their litigation going forward.

Court of King's Bench and Court of Justice

The impetus behind this limit increase is to make the justice system more accessible to Albertans by providing the opportunity to resolve civil legal disputes up to the $100,000 limit through the Court of Justice, instead of the Court of King's Bench. The reasoning being that the process for litigation in the Alberta Court of Justice is intended to be easier to navigate for both self-represented litigants and those represented by legal agents. In particular, this can result in a cost and time savings for parties.

The jurisdiction of the Court of King's Bench is broad and includes criminal matters, civil actions and judicial reviews as constituted by the Court of King's Bench Act.^[2] Actions brought before the Court of King's Bench must comply with the Alberta Rules of Court, which includes specific discovery procedures. A decision before the Court of King's Bench may be appealed to the Court of Appeal of Alberta.

In contrast, the Alberta Court of Justice has the discretion, but no obligation, to adopt the Alberta Rules of Court.^[3] The Alberta Court of Justice follows the Regulation, which contains less rigorous procedural rules. This, in turn, makes the process of starting a claim to be easier, faster, and more accessible to self-represented litigants than the same process in the Court of King's Bench. However, the lack of rules surrounding production of records can lead to parties requiring additional procedural steps in order to facilitate particular aspects of discovery (e.g. compelling an affidavit of records or requesting questioning). These additional steps mean added costs and time that the parties may have hoped to avoid.

Additionally, the Alberta Court of Justice may require parties to attend pre-trial conferences or mediations prior to proceeding to trial. Parties can request a pre-trial conference or mediation to obtain the Court's assistance with the processes. There is no prescribed test for which are selected for these processes or the timeline for the processes. Mediation is required if the case is selected or the Court so directs. In practice, pre-trial conferences or mediations usually occur within a few weeks or months after the close of pleadings. In some instances, pre-trial conferences or mediations may be scheduled before the parties have had an opportunity to deal with important issues such as disclosure, experts, or summary judgment applications. If a party does not appear for a scheduled pre-trial conference or mediation, the Court may enter judgment against that absent party.

There is also a simplified trial process available for straightforward claims to fast-track them to trial.

Costs recovery in the Alberta Court of Justice is awarded in a similar manner as the Court of King's Bench, following a Tariff of Recoverable Costs. However, that tariff is considerably lower than in the Court of King's Bench, and the Alberta Court of Justice retains the discretionary power to award costs. Due to this discretionary power, costs awards in the Alberta Court of Justice may be less predictable in than those in the Court of King's Bench.

Transferring actions between the Court of Justice and Court of King's Bench

Actions may be transferred between the Alberta Court of Justice and the Court of King's Bench of Alberta. The Court of Justice Act sets out the procedure for transitioning an action from one court to another. The process is strict and unlikely to impact actions that are started before August 1, 2023.

The Alberta Court of Justice may order actions to be transferred to the Court of King's Bench, but only if the action is beyond the jurisdiction of the Alberta Court of Justice.^[4] If an action is found to be within the jurisdiction of the Alberta Court of Justice, the Court has generally declined to transfer the action to the Court of King's Bench.^[5] An action also cannot be transferred to the Court of King's Bench on grounds that the action is too complex for the Alberta Court of Justice.^[6] When an action is transferred into the Court of King's Bench, the Court may impose any conditions it considers proper including continuing the matter as-is, or ordering the matter to be re-commenced.^[7]

The Court of King's Bench may transfer an action to the Alberta Court of Justice on an application if all parties consent and if the matter is within the jurisdiction of the Alberta Court of Justice.^[8] If an action is transferred to the Alberta Court of Justice, the action continues as if it was commenced in that Court.^[9]

Possible impact on clients and litigation moving forward

There are no changes for actions that are commenced before the increase in limit comes into effect. After the increase is implemented, there are several possible risks for actions and parties involved in the Alberta Court of Justice.

There may be a higher proportion of self-represented litigants in the Alberta Court of Justice. Actions involving this particular demographic of litigants can take longer, may be less likely to settle, and, as such, may be more expensive to resolve.^[10] The lower cost of proceedings, the simpler procedural rules, and the higher claim limit may incentivize more self-represented litigants as well as those represented by legal agents to pursue more claims in the Alberta Court of Justice instead of the Court of King's Bench. These same driving factors may also result in more litigants with legal counsel pursuing claims in the Alberta Court of Justice instead of the Court of King's Bench.

A higher volume of actions in the Alberta Court of Justice would likely lead to delays in the immediate days and months after the increased claim limit is implemented, due to issues with processing time and the number of available staff. On the other hand, an increase in actions in the Alberta Court of Justice may correspond with a decrease in actions in the Court of King's Bench, which could in turn alleviate delays and scheduling issues with the Court of King's Bench. It is also possible that more actions will be pursued in the numerous Alberta Court of Justice courthouses located outside of the centres where the Court of King's Bench courthouses are located. While this may allow greater ease of access for some, and travel for others, there is also the availability of virtual remote proceedings for certain activities.^[11] On the other hand, potential plaintiffs should consider the possible proximity and travel-time advantages of choosing a specific judicial centre of the Alberta Court of Justice judicial centre at which to commence their claim.

Defendants in the Alberta Court of Justice may wish to bring to the Court's attention early that the matter is complex and requires steps to facilitate discovery and timelines for completing litigation steps before the matter is slated for mediation or simplified trial. The less stringent procedural rules in the Alberta Court of Justice may lead to less evidence being produced than is required for a proper defence. This is particularly important when an action is more complex and requires evidence such as expert evidence. Once an action commences in the Alberta Court of Justice, it will generally not transfer to the Court of King's Bench unless the action is beyond the Alberta Court of Justice's jurisdiction. However, the opposite can occur with consent of the parties.

Additionally, the timing for any pre-trial conferences/mediations can be unpredictable, and this unpredictability extends to setting a matter down for trial. Parties to an action should expect litigation steps to occur on a more expedited timeline in the Alberta Court of Justice than in the Court of King's Bench.

In summary, the increase in the claims limit is likely to result in, not only more complex actions, but more actions in general proceeding in the Alberta Court of Justice. There are many differences between the Court of King's Bench and the Alberta Court of Justice. As a result, parties may wish to consider litigation strategies appropriate to the Court.