The Steps in a Civil Action
Litigation in Alberta is generally a lengthy, complicated process involving several steps. The litigation process can be confusing and intimidating for first-time litigants.
We provide below a brief summary of some of the main steps in a civil action. This article is not intended to be an exhaustive guide to all of the potential steps involved in a civil action, but rather a brief summary of the main steps in the litigation process.
This article pertains to civil actions brought in the Alberta Court of King's Bench. The Alberta Court of King's Bench is distinguished from the Provincial Court of Alberta, which is predominantly used for smaller claims (actions worth $50,000 or less). The Provincial Court of Alberta offers a simpler, streamlined process for smaller claims.
Statement of Claim
The first step in pursuing a civil action is filing a Statement of Claim. A Statement of Claim is a formal legal document setting out the basis of the Plaintiff’s claim. The Statement of Claim will set out the Plaintiff’s version of events, any losses that the Plaintiff alleges to have suffered and the remedy that Plaintiff is seeking.
Once the Plaintiff has filed the Statement of Claim, the Plaintiff has one year to serve the Statement of Claim on the Defendants in the action. The Plaintiff may also apply to the Court for an extension of the time to serve the Statement of Claim up to a maximum of 3 months.
Statement of Defence
Once the Defendant has been served with the Statement of Claim, the next step is for the Defendant to file and serve a Statement of Defence. A Statement of Defence is a formal legal document setting out the basis of the Defendant’s defence. The Statement of Defence will set out the Defendant’s version of events as well as any defences that the Defendant may raise in an effort to defeat the Plaintiff’s claim.
Affidavit of Records
After pleadings have been filed and served, the next step is an exchange of records between the parties. At this stage of a civil action, both the Plaintiff and the Defendant are required to prepare an Affidavit of Records. An Affidavit of Records is a sworn legal document listing all of the records in a party’s possession that are relevant and material to the action.
It is important to remember that documentation is given a very wide definition and typically includes such things as doctors’ charts, hospital records, prescription history, income records, photographs, videos, emails, text messages, and even your own handwritten notes.
Legal counsel will review all of the documentation and consider what documentation needs to be provided to the opposing side. Only those documents which are relevant, material, and not subject to privilege will be produced.
In most litigation, new documents are created or produced after the preparation of the Affidavit of Records. At some point, legal counsel will prepare a Supplemental Affidavit of Records that sets out all of the new documents that have been produced since the time the original Affidavit of Records was prepared.
Questioning and Undertakings
Once there has been an exchange of the Affidavits of Records, the next step in a civil action is Questioning. At Questioning, legal counsel for the Plaintiff and the Defendant have the opportunity to ask the other party questions under oath. Although there is no judge present, the witness must swear, or affirm, to tell the truth. All of the questions and answers given are recorded by a court reporter, who will prepare a transcript of those questions and answers.
There is a high likelihood that counsel for the Plaintiff or Defendant will ask a question that will require the other party to get additional information. This is referred to as an undertaking. Common undertakings include requesting medical records from a treating physician, an updated hospital chart, or more income-related documentation. After the first round of Questionings have been completed, counsel for the Plaintiff and Defendant will take the necessary steps to attempt to get necessary documentation to answer the undertakings. Once such documentation is received, counsel will provide the answers to the undertakings and any producible documents arising from the undertakings to opposing counsel. Counsel will then review the documentation and the answers to the undertakings to determine whether they will need to ask any future questions. If so, a further Questioning date will be scheduled.
Experts and Medical Examinations
During the litigation process, expert opinions may be needed by both the Plaintiff and the Defendant. Assessments by the various experts can take place at any time, but usually occur after the Questionings have been completed.
Once Questionings are completed, counsel will finalize the reports of the experts that they intend to call at trial and will provide those reports to opposing counsel. Opposing counsel will review the reports and provide them to their experts or, in some situations, may retain new experts to address the expert opinions provided by opposing counsel.
Finally, once all the above steps have been taken, the matter can be set for trial. The parties will estimate how much time they believe they will need for trial and will then send in a request to the court to schedule a trial for that length of time.
Unfortunately, the courts in Alberta are extremely busy. In the judicial centres of Edmonton and Calgary, you can expect anywhere from a delay of one to three years for the scheduled trial after all pre-trial steps have been completed.
The trial proceeds with the plaintiff leading all of their evidence, including evidence from their experts. Once that is completed, the defence will then call their witnesses and experts. Once all the witnesses and experts have given their evidence, the lawyers will present their legal argument to the judge who almost always reserves their decision, which means that the judge will take some time to consider the evidence and the arguments of the legal counsel and will then prepare a written judgment addressing the issues of the trial. In complicated cases, it may take the judge six months to a year to complete this process.
Once the judge has released their written judgment, counsel will thoroughly review the judge’s reasons for judgement. Either side may appeal the decision of the trial judge if there are legal grounds for appeal. In other words, if the judge finds in favour of the Plaintiff, the defence can appeal the decision. You can read about appeals here.
If you are considering pursuing a civil action and want to learn more, contact one of our civil litigation lawyers.
By Ian Miller