Litigation and Alternative Dispute Resolution
Litigation is the formal process of settling a civil dispute between parties by referring the matter to Court, by filing and serving a law suit. The entire process is governed by formal Rules of Court, which set out the rules for commencing and carrying on a law suit.
There are two Courts in Alberta where one can file a law suit, each with their own separate jurisdiction.
The Provincial Court of Alberta
Claimants can file a suit in the Provincial Court of Alberta (Civil Division), if the matter in dispute has a monetary value of $50,000.00 or less, and meets jurisdiction of the Provincial Court as set out in the Provincial Court Act. The Provincial Court has only the powers granted to it under that Act, so there are certain matters that the Judges of this Court may not hear.
The Court of Queen’s Bench of Alberta
Claimants can also file a suit in the Court of Queen’s Bench for the resolution of virtually any civil matter. There is no monetary limit (minimum or maximum) for the jurisdiction of the Court of Queen’s Bench. As the Court of Queen’s Bench is the court of superior jurisdiction in Alberta, the Justices of the Court are empowered to hear virtually any civil matter that is brought before them.
The dispute is resolved by formally presenting evidence to a Judge, or to a Justice, who will then make a decision based on that evidence. The introduction of evidence is strictly governed by the Rules of Court, and the evidence must be confined solely to the facts at the heart of the matter. There is little, if any, room for the parties to the law suit to express personal feelings or to discuss how the matter affected them, personally.
Litigating a dispute through either of the Courts in Alberta is not a decision to be made lightly. Litigation can be an extremely expensive method of attempting to resolve a dispute between parties, and can take several years to reach a conclusion. In addition, all documents which are filed in the Court become a matter of public record, and the entire file is available for viewing by any member of the public who wishes to do so.
Alternative Dispute Resolution
“Also known as ‘ADR’; methods by which legal conflicts and disputes are resolved privately and other than through litigation in the public courts, usually through one of two forms: mediation or arbitration.”
– Duhaime’s Legal Dictionary (www.duhaime.org)
An alternative to formally litigating a dispute is to refer the matter to mediation or arbitration. These are, usually, private processes where the parties attempt to reach a resolution with the assistance of a third-party mediator or arbitrator.
Mediation is a process where the parties try to reach a resolution by agreeing on the matter in dispute and discussing how the dispute has affected them. Finally, the parties try to come to an agreement as to the financial cost of the dispute to both parties. The process is assisted by a trained mediator who helps the parties reach an agreement, but who does not impose a decision upon the parties. The mediator is a facilitator of the process, rather than a judge of the facts.
Arbitration is closer to formal litigation, but the parties and the arbitrator are at liberty to select their own process and to set their own rules as to how the evidence will be presented. The arbitrator is empowered, by agreement, to hear the evidence and to deliver a decision, much as would happen in Court. The important difference, however, is that arbitration is less formal than appearing in Court and the parties can set their own rules. The arbitrator is not a facilitator; he or she makes a decision after hearing the evidence.
All parties to a dispute must agree to have the matter decided using alternative dispute resolution, as it is usually a voluntary procedure.
There are several exceptions to this general rule. The Provincial Court of Alberta has jurisdiction to refer disputes to mandatory mediation in an attempt to resolve the matter prior to a formal trial. In addition, many contracts include provisions that require arbitration in the event of a dispute, rather than filing a law suit.
ADR tends to be less expensive than formal litigation, and usually results in a quicker resolution to the matter as the parties have far more control over the process. In addition, as the matter is private, there are no documents filed on the public record.
CAMERON HORNE LAW OFFICE has experience representing clients at both the Provincial Court of Alberta and the Court of Queen’s Bench. We would be pleased to discuss your matter with you, and provide our guidance. Our litigation practice focuses on Provincial Court mediation, Builders’ Lien actions, Alberta New Home Warranty Program arbitrations, condominium foreclosures and appearances before the Court of Queen’s Bench for real estate related issues.