New Mandatory Trial Timelines in Alberta

Last week the Court of King’s Bench of Alberta issued a new Notice to the Profession requiring all new non-family civil cases filed after September 1, 2025, to put in place a litigation plan—a set of deadlines toward trial. (The rule applies only in that Court, not the Court of Justice (Civil) or the Court of Appeal.)

 The New Mandatory Litigation Plan 

Parties must, within four months of the Statement of Defence, file a litigation plan which gets to trial in 36 months. Litigation plans do not actually schedule trials, however. At the end of the steps in the plan, one must complete  Form 37 (by agreement) or Form 38 (by order) and then a trial is actually booked. The Court’s template litigation plan ends with this: “The last lines of the Court’s draft Litigation Plans say: “The parties shall make all reasonable efforts to ensure that the Trial of this action is scheduled to commence not later than 36 months from the Trigger Date. The parties shall apply for a trial date not later than 22 months after the Trigger Date…” Lead-times are long, almost always more than a year after filing the Form 37. 

The announcement contains additional language about delay. For example, it says,  “the Civil Trial Target may require parties and counsel to rethink the way they approach civil litigation… the historical tolerance for delay caused by counsel or party schedules must be curtailed, absent exceptional circumstances.” The announcement seems to lay much of the blame for delay at the feet of parties and counsel. The Court says they are now “expected to meet deadlines under the Rules, in court orders, or otherwise agreed by them. Parties are reminded that rule 10.49 contemplates penalties against a party, lawyer or other person who fails to comply with the rules, practice note, or direction of the Court without adequate excuse”. 

One heading in the announcement is “active management toward trial”. The Court says it expects “that actions shall no longer move through the system at a self-directed, voluntary pace chosen by one or more of the parties.” But Alberta has almost no active case management. In 2019 the Court announced it was restricting the availability of case management. Parties instead must apply for a one-time case conference under r4.10. (The process for getting that is cumbersome). The new announcement does not rescind this 2019 direction, and does not imply there will be any greater use of case management than there was before. 

What Happens Next

The biggest problem with using mandatory litigation plans as a panacea for delay is that these plans are legally toothless. If a party misses a deadline, there is no automatic consequence. Even if the court puts teeth on a particular deadline—e.g. do something by this date or your pleadings are struck—that will not be upheld: Custom Metal Installations Ltd v Winspia Windows (Canada) Inc. So in all likelihood, under this new scheme, parties will enter a litigation plan. One side will miss a deadline. And then.. it isn’t clear. The opposing party could make a court application, but they will not get a contempt remedy, or judgment in their favour. At best, they will get a new litigation plan with revised deadlines and a small measure of costs; not enough to cover the legal fees of making the application.

The other issue with this idea is that it does not acknowledge one important source of delay, and explain how it can fit into this framework: the inability to obtain court time for interlocutory disputes that happen in every lawsuit. For example, if a Questioning is held and the other side objects to most of the questions, and denies all the undertaking requests, that may necessitate a court application. The only way to resolve that is a Special Chambers date in Applications Judge chambers. But there are no dates available, at any time. If, at some future point, one could obtain a date, the booking process is front-loaded and lead times are very long, often a year. The judge may take a few months to write a written decision. Either side can appeal to a Justice and the appeal is a do-over, with no deference to the decision below. Hearings of these appeals are by court rule required to be a full day which means they book at least 18 months in advance, sometimes longer. Again the judge may take time to write written reasons. Which means that a simple dispute in Questioning may take 2.5 years to resolve, and that is entirely because of court problems rather than litigants or the Bar. It is not possible to meet a 36-month trial ceiling if one cannot have the inevitable disputes that crop up on the way heard in a timely way.

The announcement also sits uneasily with the current delay rules (4.31 and 4.33), which are permissive and tolerant of great delay. It is common for cases to escape dismissal under Rule 4.31 even if they are more than years old. Rule 4.33 requires mandatory dismissal only if there has been a three-year gap with no activity at all. The new civil trial ceiling envisions getting all the way to trial in that time. These two philosophies are not compatible.

The intention behind this new policy is laudable. At the trial level our civil justice system is terribly slow. Efforts to speed up are to be encouraged. The optimistic take is that this new announcement is a positive first step. A more pessimistic view may be that after September 1, parties will paper a litigation plan, but when deadlines are missed, the system will just continue as it has before.

Insurance professionals should review their litigation management processes in light of Alberta’s new mandatory trial timelines. Contact Scott Matheson in Edmonton, Jane Freeman in Calgary or any member of Field Law's Insurance Group for guidance on how these changes may impact your claims litigation strategy.