Monday, February 6, 2017

Starting a Lawsuit in Alberta

Law Society of Alberta

As I couldn't have written it better, I will post in full the Law Society of Alberta's guidance on being sued or suing in the province below.

Civil Actions - The Process if You Sue or if You Are Being Sued

What is a civil action?

A civil action is any legal action that is not a criminal action. Civil actions are between private individuals, unlike criminal actions which are between the crown and the accused. Examples of civil actions are claims for debt, for damages arising from motor vehicle accidents, divorces, adoptions, matrimonial property actions, foreclosures, and administration of estates following a death. The persons involved in a civil action are called the parties.

What should you do if you are "served" with a legal document?

If the document you receive is a "Statement of Claim", an "Originating Notice", or a "Civil Claim", you must take quick action if you want to dispute the claim or the action sought.

Do not ignore any of these documents. You may get a judgment or order made against you if you fail to reply to any of these documents within the required time and in the required form. You should seek legal advice if you receive any legal documents.

In the case of a Statement of Claim issued in the Court of Queen's Bench, you have 20 days following the date of service to file a formal Statement of Defence with the Clerk of the Court and serve a filed copy of your Statement of Defence on the party suing you, i.e. the Plaintiff.

If you receive an Originating Notice, you should check the date on which the hearing is scheduled. Originating Notices must be served no less than 10 days before the date set for the hearing.

If you receive a Civil Claim filed in the Provincial Court and you want to defend against the claim, you have 20 days from the date of service of the Civil Claim to file and serve a Dispute Note on the Plaintiff.

Your lawyer can advise you of the time limits that apply to your case. Note that different deadlines may apply if the documents are served outside of the province.

What does "served" or "being served" mean?

The formal process by which a party named in a legal action receives a copy of the legal documents filed to start or to defend a legal action is called "service" or "being served". There are specific rules in the Rules of Court and certain statutes which prescribe how court documents must be served. Sometimes, for example, proper service requires that you deliver documents to the other party personally; sometimes, the rules allow delivery to be made by mail. Failure to serve documents in the required manner may result in the service being found invalid.

What steps are involved in a civil action?

There are three stages to most civil actions: the filing and serving of the pleadings, the questioning process, and the trial process. Questioning may not be available in civil actions pursued in Provincial Court. There are certain critical deadlines which apply to each of these stages.

Sometimes, it is necessary to ask the court's help long before you are ready to go to trial, or even have a trial date set. Such an order is called an interim order. Usually only lawyers attend at court on these matters, and all evidence is given through affidavit.

The Pleadings

Pleadings are the formal written claims and defences used to start and defend a lawsuit. The proper form of pleading will depend on the type of claim and the court in which the action is started. Pleadings include Statements of Claim, Statements of Defence, Civil Claims, Dispute Notes, Counterclaims, Originating Notices. These documents set out the issues and any defence to the claim.

The Rules of Court require the initiating documents to be filed in the proper Court Registry and served within a specified period of time on the party being sued. For example, both Civil Claims and Statements of Claim are to be served within 12 months from the date on which Civil Claim or Statement of Claim is filed with the Clerk of the Court. Originating Notices must be served at least 10 days prior to the date of the hearing.

As mentioned earlier, the party being sued has a specific number of days to respond to the claim by filing documents in the proper court registry and serving them on the suing party.

The Questioning Process

The questioning process allows one party to obtain admissions from the other party and to learn more about the other party's case to decide if it is worth going to trial, or if a settlement should be offered. If the parties cannot reach an agreement, the court will have to decide the matter for them.

There are different elements to the questioning process. For example, each party can be required to disclose to the other party all documents and information relevant to the case. In addition, each party can be required to attend a meeting and be questioned under oath concerning the claim. The questions and answers are recorded, and then produced in written form, in a transcript, and they can be used by the opposite party at trial. Your lawyer will help you prepare for this procedure.

The Trial Process

The trial process involves all proceedings involving preparation for trial, the trial itself, the giving of the judgment, and the filing of the order.

Any appeal of a court order must be filed within a specified period of time or the right to appeal may be lost. Your lawyer will know these deadlines.

Will you need a lawyer to start or defend a lawsuit?

Normally, you do not need a lawyer to handle a claim in Provincial Court (the civil division is usually referred to as "Small Claims Court"). There the procedures are simpler than those in the other courts. For instance, there is no questioning process. The Provincial Court is intended for use by the public.

In the other courts the issues are usually more complex and the procedures are more complicated. There are more rules and time limits which must be followed. Failure to comply with these could mean that the action will be dismissed, that it will go ahead in your absence, or that costs will be awarded against you.

Remember, there are rules about the time in which you must bring a claim against someone else. These deadlines are called limitation dates, and they apply to all civil actions. If you do not start your civil action within the required time, you may not be permitted to do so after that time has passed. Your lawyer can advise you about the limitation date that applies in your case.

What are the Rules of Court?

Every court has a set of rules to guide its proceedings. It is your lawyer's task to know these rules and to ensure that the parties comply with them.

The Rules of Court are regulations which set out the rules, forms, and procedures which apply in civil actions in the Court of Queen's Bench and the Surrogate Court. The Surrogate Court also has an additional set of rules that applies solely to its proceedings.

The various rules were enacted to ensure that the process is fair, that each party gets proper notice about proceedings and a chance to respond to the claims, and that the proceedings cannot be delayed excessively.

If you win your case, does the other party pay all your legal fees?

An order that one party pay some, all, or none of the other party's costs is called an order for costs. There are three types of orders for costs. The most common are for party and party costs, which are usually made in favour of the more successful party. If you get this order for costs, it does not mean that 100% of your lawyer's fees will be paid by the other party. In effect, this order will mean that the other party will owe you only a portion of the amount you actually pay in legal fees. Other orders for costs are made only in special circumstances.

How do you collect on a judgment?

Winning a law suit or an order for costs does not always end the matter. Some orders, like those for divorce or adoption, do not require the co-operation of the other side; others, like those for payment of a sum or money or the transfer of property, do. If the losing party does not cooperate, you will have to start enforcement proceedings to collect on the judgment.

There are a variety of enforcement proceedings. They include: garnisheeing wages or bank accounts, seizing property owned by the other party, registering the judgment against property, and contempt of court. Your lawyer can advise you of the most appropriate method in your case.

In which court do you start a law suit?

In Alberta, a law suit can be started in the Provincial Court, the Court of Queen's Bench, the Surrogate Court, or the Federal Court. Each of these courts has power to decide certain claims.

You must choose the proper court to deal with your specific claim. If an action is started in the wrong court, it will be invalid. The choice of court will depend on the reason for the law suit and, sometimes, the amount of money involved, if any.

Why should you consult your lawyer?

Even where you intend to handle your own legal proceedings, it is recommended that you first talk with your lawyer. This step might help you better protect yourself from concerns about limitation dates or any complications that may arise in the law suit.

Your lawyer is your advocate who will conduct matters with your best interests in mind.

Your lawyer can advise you of:
  1. any limitation dates that might affect your right to proceed with a civil action;
  2. the proper court and documents needed to start the action;
  3. your legal position and any claims or defences that should or must be made;
  4. the time limits at each stage of the process;
  5. any interim orders needed to protect your interests;
  6. the need for any expert evidence;
  7. your chances of success or failure, and whether settlement should be accepted;
  8. whether an appeal should be taken;
  9. ways of enforcing your court order.
Your lawyer will:
  1. draft the pleadings;
  2. arrange for the proper filing and service of the documents on the other party;
  3. take necessary steps to protect your position until a judgment is made;
  4. conduct necessary searches and retain experts to assist your case;
  5. help you to obtain documents from the opposing party and to prepare your documents for disclosure to the other side;
  6. prepare you for questioning and testimony at trial;
  7. conduct questioning of the other party;
  8. present your evidence at trial;
  9. draft court orders.

And on Service of Documents see.
Image result for alberta provincial courts

Once the court has issued the Civil Claim and returned it to you, the next step is to give it to the defendant. This is called service. You must serve a Dispute Note with the Civil Claim on each defendant. The form of Dispute Note can be obtained at the court office, and it is for the defendant to fill out.
You may serve the Civil Claim and form of Dispute Note on any day of the week. Someone else may serve the Civil Claim and form of Dispute Note for you. If you are unable to serve your documents by one of the authorized methods, contact the court office for further instructions.
You (the plaintiff) may also hire a process server to serve the documents on your behalf. If you are successful with the law suit, the court will normally order the unsuccessful party to pay service costs.

Methods of Service

You may serve the Civil Claim and form of Dispute Note on a person by:
  • giving the documents to that person;
  • leaving the documents at that person's most usual residence with a resident who is apparently 16 years of age or older; or
  • mailing the documents by registered mail. The defendant or someone on the defendant's behalf will sign to receive the documents. Keep the original postal receipt. Contact your post office to obtain a Copy of Signature or a Certificate of Delivery Confirmation document.
You may serve the Civil Claim and form of Dispute Note on a corporation by:
  • giving the documents to the president, chairman, head officer or a director of the corporation;
  • giving the documents to a manager, agent or officer of the corporation located where the Civil Claim was issued; or
  • leaving it at or sending it by registered mail to the registered office of the corporation.
  • if service is done by registered mail it is considered to be served 7 days from the date of mailing to an address in Alberta and 14 days if mailed to an address in Canada, outside of Alberta. Obtain a corporate search at an Alberta Registry office to prove to the court that you have properly served the registered office of the corporation.

Affidavit of Service

After serving the defendant, the person who served the Civil Claim and form of Dispute Note must
  • fill out the Affidavit of Service
  • take the Affidavit of Service in person to a Commissioner for Oaths to be sworn. This may be done at any court office.
  • give the commissioner the postal receipt and a copy of Signature of Certificate of Delivery Confirmation document if served on a person. This confirmation document is obtained through the post office. You can also obtain the confirmation through the Canada Post website. The commissioner will attach and mark the receipts and documents as exhibits.
  • give the commissioner the postal receipt from the post office if served by registered mail on a corporation. The commissioner will attach and mark the receipt as an exhibit.

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