Summary Trials are an expedited process under the Alberta Rules of Court, allowing matters to proceed to a hearing without the full rigors of a trial. In the recent case of Benke v. Loblaw Companies, 2022 ABQB 461, the court discussed some of the reasons summary trials are underutilized.
The Court said at paragraph 6:
This raises a common problem that afflicts civil litigation in Alberta. The perception amongst the civil litigation bar is that attempting to proceed by way of summary trial, even with the agreement or non-objection of the opposing party, is fraught with risk because the Court may decide after counsel have put in the work to prepare for the summary trial and clients have made corresponding and sometimes significant financial outlays that the matter is not suitable for summary trial. This is something that I experienced as counsel. There are examples in the caselaw to the contrary where the Court has proceeded with summary trials in the face of conflicting evidence and credibility issues; however, decisions not to proceed with a summary trial are much less likely to result in written reasons. The perception that summary trial is a risky procedure, even when both parties agree, has caused it to be under utilized.
The Court went on to discuss the potential of litigants turning to arbitration en masse to deal with litigation if the Court's are unsatisfactory, it risks undermining the legitimacy of the Courts.
The Court looked at the Kozens test (JN v Kozens 2004 ABCA 394) , which which is legal test used by courts when deciding if Summary trial is appropriate. The first question is can the Court decide the disputed question of fact? The second question is; would it be unjust to decide the disputed issue by way of Summary Trial?
The Court in the case made a strong argument for using Summary Trials in certain types of cases. If you are involved in a litigation matter in Alberta, and want to discuss Summary Trial, please feel free to contact us.
The information contained in this article is not legal advice. No solicitor client relationship is formed through this article. The reader is encouraged to retain counsel for advice in these matters.
