Rules 8.4(3)(a) and 8.5(1)(a) of the Alberta Rules of Court (otherwise known as the “ADR/JDR Rules” requiring parties to conduct an Alternate Dispute Resolution (ADR) or a Judicial Dispute Resolution (JDR) before setting a matter for trial, were suspended in July 2013 by the former Chief Justice and Associate Chief Justice of the Alberta Court of Queen’s Bench. At that time, limited judicial resources were being stretched beyond capacity and lead times for JDRs were unacceptably long. As such, the suspension of the ADR/JDR Rules was a reasonable response.
On March 12, 2019, the Court of Queen’s Bench of Alberta announced that it will lift the suspension of the ADR/JDR Rules on a one-year pilot project basis. Effective September 1, 2019, the ADR/JDR Rules will be in effect for all civil actions scheduled after that date.
HOW THE PILOT PROJECT WILL WORK
To book a JDR during the pilot period, parties will be required to complete an amended version of Forms 37 or 38. In this regard, they will have to indicate that they “will participate (in lieu of the current wording “have participated”) in at least one of the dispute resolution processes described in R. 4.16(1) to be completed prior to trial”.
The above direction only applies to civil actions. Parties to family law matters will be exempt from filing Forms 37 or 38 prior to accessing a JDR. The filing fee will continue to apply. Parties who resolve their action can request reimbursement from the QB Clerk’s office of the portion of the fee paid over and above the basic $600.
WHAT THIS MEANS
Lifting the ADR/JDR suspension is meant to encourage parties to attempt alternative means to resolve their disputes without trial. In this regard, the hope is that parties will be enticed to avoid further delay in later proceeding to trial.
Despite the positives of lifting the ADR/JDR suspension, some concerns remain. One is that it will create a burden on parties who seek to resolve their dispute well in advance of trial, to still be required to comply with the ADR/JDR Rules. On the other end of spectrum, concerns have been raised in respect of matters where it is clear that ADR/JDRs will be futile. In this regard, it has been suggested that an exit mechanism should be in place to exempt such cases from the ADR/JDR Rules.
The Court has recognized these concerns and directed that parties may apply for an exemption of the ADR/JDR Rules if appropriate, under the guidance of the Rules of Court, as set out below.
APPLYING FOR AN EXEMPTION
Parties may apply under Rule 4.16(2) for an exemption from the ADR/JDR Rules. There are several grounds upon which a party may be granted an exemption, and applications will be decided on a case-by-case basis.
In order to facilitate the adjudication of applications for exemptions, the Court of Queen’s Bench will be instituting a system of desk applications with appropriate forms posted on the QB website, along with a Notice to the Profession describing the exemption process before the September 1, 2019 date.
However, it is important to note that the ease of a desk application should not be construed as easily obtaining an exemption to the ADR/JDR Rules. Parties must establish evidence by grounds for making their exemption application.