O.C. 221/2013

A.R. 140/2013

July 25, 2013


            The Lieutenant Governor in Council makes the Alberta Rules of Court Amendment Regulation set out in the attached Appendix.

For Information only

Recommended by:          Minister of Justice and Solicitor General

Authority:                             Judicature Act
                                                (section 28.1)


APPENDIX

Judicature Act

ALBERTA RULES OF COURT
AMENDMENT REGULATION

1   The Alberta Rules of Court (AR 124/2010) are amended by this Regulation.

 

2   Rule 2.13 is amended by repealing the portion preceding clause (a) and substituting the following:

Automatic litigation representatives

2.13   If an individual or estate is required to have a litigation representative under rule 2.11, a person is an automatic litigation representative for the individual or estate if the person has authority to commence, compromise, settle or defend a claim on behalf of the individual or estate under any of the following:

 

3   Rule 4.31 is amended

                                 (a)    by renumbering it as rule 4.31(1);

                                 (b)    in subrule (1)(a) by striking out “is satisfied” and substituting “determines”;

                                 (c)    by adding the following after subrule (1):

(2)  Where, in determining an application under this rule, the Court finds that the delay in an action is inordinate and inexcusable, that delay is presumed to have resulted in significant prejudice to the party that brought the application.

 

4   Rule 4.33 is amended

                                 (a)    in subrule (1)

                                           (i)    by striking out “2 or more years has passed after the last thing done that significantly advanced” and substituting “3 or more years has passed without a significant advance in”;

                                          (ii)    in clause (b) by striking out “doing the next thing in” and substituting “advancing”;

                                         (iii)    by repealing clause (c) and substituting the following:

                                                   (c)    the applicant did not provide a substantive response within 2 months after receiving a written proposal by the respondent that the action not be advanced until more than 3 years after the last significant advance in the action, or

                                 (b)    by repealing subrule (3) and substituting the following:

(3)  The following periods of time must not be considered in computing periods of time under subrule (1):

                                          (a)    a period of time, not exceeding one year, between service of a statement of claim on an applicant and service of the applicant’s statement of defence;

                                          (b)    a period of time, not exceeding one year, between provision of a written proposal referred to in subrule (1)(c) and provision of a substantive response referred to in that subrule.

(4)  Rule 13.5 does not apply to this rule.

 

5   Rule 5.5(3) is amended by striking out “one month” and substituting “2 months”.

 

6   Rule 5.15 is amended

                                 (a)    in subrule (2) by striking out “(4) and (5)” and substituting “(4), (5) and (6)”;

                                 (b)    in subrule (4) by striking out “one month” and substituting “3 months”;

                                 (c)    by repealing subrule (5) and substituting the following:

(5)  Notwithstanding that the maker or recipient of an affidavit of records does not serve a notice under subrule (4) within the time provided by that subrule, the Court may order that the maker or recipient is not presumed to make the admission referred to in subrule (2).

(6)  This rule does not apply to a record whose authenticity, receipt or transmission has been denied by a party in the party’s pleadings.

 

7   Rule 5.28(1)(c) is amended by striking out “the answers to the questions must be served by the questioning party” and substituting “the party being questioned must serve the answers to the questions”.

 

8   Rule 10.10(2) is amended by striking out “reviewed if” and substituting “reviewed, whether at the request of the lawyer or the client, if”.

 

9   Rule 10.13 is amended

                                 (a)    by repealing subrules (2) and (3) and substituting the following:

(2)  If a lawyer obtains an appointment date, the lawyer must file

                                          (a)    a notice of the appointment in Form 42,

                                          (b)    a copy, in a sealed envelope, of any retainer agreement between the lawyer and the client, and

                                          (c)    if the appointment is for a review of the lawyer’s charges, a copy of a signed account of the lawyer’s charges that are to be reviewed.

(3)  If a client obtains an appointment date, the client must file

                                          (a)    a notice of the appointment in Form 42,

                                          (b)    a copy, in a sealed envelope, of any retainer agreement between the lawyer and the client, if a copy is available, and

                                          (c)    if the appointment is for a review of a lawyer’s charges, a copy of the lawyer’s account that is to be reviewed, if a copy is available.

                                 (b)    in subrule (4) by striking out “notice of the appointment date” and substituting “copies of the documents filed under subrule (2) or (3)”.

 

10   Rule 10.14(1) is amended by striking out “any retainer agreement,” and substituting “a copy, in a sealed envelope, of any retainer agreement between the lawyer and the client”.

 

11   Rule 10.15 is amended

                                 (a)    by striking out “A retainer agreement” and substituting “The content of a retainer agreement”;

                                 (b)    in clause (a) by striking out “existence of the agreement or information in it” and substituting “information in the agreement”.

 

12   Rule 10.48 is repealed and the following is substituted:

Recovery of goods and services tax

10.48(1)  Unless the Court otherwise orders, a party entitled to a costs award is entitled to an additional amount on account of goods and services tax

                                 (a)    on the fees portion of the costs award, and

                                 (b)    on those disbursements, if any, that are taxable supplies under the Excise Tax Act (Canada).

(2)  Notwithstanding subrule (1), no additional amount on account of goods and services tax is recoverable where the tax is refundable or rebateable pursuant to the Excise Tax Act (Canada).

 

13   Rule 11.27 is amended by adding the following after subrule (3):

(4)  Subrules (1) to (3) apply despite

                                 (a)    any previous order that permitted or directed service of the document by a particular method, and

                                 (b)    the fact that the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters applies to service of the document.

 

14   Rule 12.41(7)(b) is amended by striking out “adverse interest” and substituting “adverse inference”.

 

15   Rule 15.4 is amended

                                 (a)    in subrule (1)(a) and (b) by striking out “elapsed since the last thing done to significantly advance” and substituting “passed without a significant advance in”;

                                 (b)    by repealing subrule (2)(c) and substituting the following:

                                          (c)    the applicant did not provide a substantive response within 2 months after receiving a written proposal by the respondent that the action not be advanced until more than 3 years after the last significant advance in the action, or

                                 (c)    by repealing subrule (4) and substituting the following:

(4)  The following periods of time must not be considered in computing periods of time under subrule (1):

                                          (a)    a period of time, not exceeding one year, between service of a statement of claim on an applicant and service of the applicant’s statement of defence;

                                          (b)    a period of time, not exceeding one year, between provision of a written proposal referred to in subrule (2)(c) and provision of a substantive response referred to in that subrule.

(5)  Rule 13.5 does not apply to this rule.

 

16   Schedule A is amended

                                 (a)    in Form 5 under the heading “WARNING” by striking out “rely on an affidavit or other evidence when the originating application is heard or considered, you must reply by giving reasonable notice of that material to the applicant” and substituting “give evidence in response to the application, you must reply by filing an affidavit or other evidence with the Court and serving a copy of that affidavit or other evidence on the applicant(s) a reasonable time before the application is to be heard or considered”;

                                 (b)    in Form 7 under the heading “WARNING” by striking out “rely on an affidavit or other evidence when the originating application is heard or considered, you must reply by giving reasonable notice of that material to the applicant(s)” and substituting “give evidence in response to the application, you must reply by filing an affidavit or other evidence with the Court and serving a copy of that affidavit or other evidence on the applicant(s) a reasonable time before the application is to be heard or considered”;

                                 (c)    in Forms 19 and 27 under the heading “WARNING” by striking out “rely on an affidavit or other evidence when the application is heard or considered, you must reply by giving reasonable notice of the material to the applicant” and substituting “give evidence in response to the application, you must reply by filing an affidavit or other evidence with the Court and serving a copy of that affidavit or other evidence on the applicant(s) a reasonable time before the application is to be heard or considered”;

                                 (d)    in Form 32 under the heading “WARNING” by striking out “rely on an affidavit or other evidence when the application is heard or considered, you must reply by giving reasonable notice of the material to the applicant” and substituting “give evidence in response to the application, you must reply by filing an affidavit or other evidence with the Court and serving a copy of that affidavit or other evidence on the applicant(s) a reasonable time before the application is to be heard or considered”;

                                 (e)    in Form 34 under the heading “WARNING” by striking out “rely on an affidavit or other evidence when the [originating] application is heard or considered, you must reply by giving reasonable notice of that material to the applicant(s)” and substituting “give evidence in response to the application, you must reply by filing an affidavit or other evidence with the Court and serving a copy of that affidavit or other evidence on the applicant(s) a reasonable time before the application is to be heard or considered”;

                                  (f)    in Form 36 under the heading “WARNING”

                                           (i)    by striking out “on which you intend to rely when the application is heard or considered” and substituting “that you intend to give in response to the application”;

                                          (ii)    by striking out “anything on which you intend to rely” and substituting “a copy of any affidavit or other evidence that you intend to give”;

                                         (iii)    by striking out “applicant 5 days” and substituting “applicant(s) 5 days”;

                                 (g)    in Forms 38 and 41 under the heading “WARNING” by striking out “rely on an affidavit or other evidence when the application is heard or considered, you must reply by giving reasonable notice of the material to the applicant” and substituting “give evidence in response to the application, you must reply by filing an affidavit or other evidence with the Court and serving a copy of that affidavit or other evidence on the applicant(s) a reasonable time before the application is to be heard or considered”;

                                 (h)    in Form 42

                                           (i)    by striking out “retainer agreement(s) that is (are) attached” and substituting “retainer agreement(s) that is (are) required to be served with this notice of appointment”;

                                          (ii)    by striking out “retainer agreements between the client(s) and the lawyer/law firm, which are to be provided” and substituting “retainer agreements between the client(s) and the lawyer/law firm, which are required to be provided”;

                                         (iii)    by striking out “lawyer’s account(s) that is (are) attached” and substituting “lawyer’s account(s) that is (are) required to be served with this notice of appointment”;

                                         (iv)    by striking out “lawyer’s accounts between the client(s) and the lawyer/law firm, which are to be provided” and substituting “lawyer’s accounts between the client(s) and the lawyer/law firm, which are required to be provided”;

                                  (i)    in Form 44

                                           (i)    by adding the following before the headingTotal amount claimed:”:

By making the above claim for an additional amount on account of goods and services tax, the party entitled to the costs award warrants that it is not entitled under the Excise Tax Act (Canada) to a refund or rebate of any goods and services tax paid.

                                          (ii)    by striking out the portion of the form after “CERTIFICATE OF ASSESSMENT OFFICER:” and substituting the following:

I, ___________________, certify the following amount(s) that is (are) to be paid

           By Plaintiff:                               $_______________________

           By Defendant:                          $_______________________

to (name of party or parties to receive the costs awarded).

I also certify the following special circumstance(s) and the amount to be paid by each party with respect to the special circumstance(s):

Dated: ___________

Name of Assessment Officer: ____________________

                                  (j)    in Forms FL‑18 and FL‑20 by striking out the warning and substituting the following:

WARNING

If you do not come to Court on the date and at the time shown above either in person or by your lawyer, the Court may give the Applicant(s) what they want in your absence.  You will be bound by any order that the Court makes.

If you intend to give evidence in response to the application, you must reply by filing an affidavit or other evidence with the Court and serving a copy of that affidavit or other evidence on the Applicant(s) a reasonable time before the application is to be heard or considered.

 

                                  (j)    in Form FL‑27 in clause 10 of the Corollary Relief Clauses by striking out “Director of Maintenance Enforcement (“MEP”), 7th Floor North, 10355 ‑ 97 Street” and substituting “Director of Maintenance Enforcement (“MEP”), 7th Floor North, 10365 ‑ 97 Street”.

 

17   The Appendix is amended by adding the following after the definition of “order”:

                                  “outside Alberta” means outside Alberta and Canada except

                                 (a)    in the expressions “outside Alberta but within Canada”, “outside Alberta but in Canada” and “outside Alberta and in Canada”, and

                                 (b)    in rules 12.14, 12.26(1) and (5), 12.46(1)(b) and 12.52;