Dispute resolution in Alberta is similar to the practice throughout Canada and other Western legal jurisdictions. Parties doing business in Alberta can be ensured that business disputes will be resolved according to the rule of law in a fair and just manner. The independence and impartiality of the Canadian judiciary is beyond question, and the litigation process is designed to handle complex commercial matters. Business disputes can be resolved and adjudicated in a timely and efficient manner, either through the traditional court system or through robust private alternative dispute resolution processes.
Structure and independence of the courts
Commercial disputes in Alberta are typically litigated in the Court of Queen's Bench, from which an appeal as of right lies to the Alberta Court of Appeal. The Supreme Court of Canada is the final court of appeal from all provincial appellate courts. An appeal to the SCC requires leave, which may be granted in cases involving an issue of public importance or a particularly significant or novel issue of law. Justices of the Court of Queen's Bench, the Court of Appeal and the Supreme Court of Canada are all appointed by the federal government, and are drawn from experienced members of the legal profession.
The Canadian judiciary, including the judiciary in Alberta, is widely regarded as non-partisan and independent of other branches of government. Judicial independence is recognised as a fundamental requirement of the rule of law, and is reinforced by Canada's constitution. Hallmarks of judicial independence in Canada include security of tenure, financial security and institutional administrative independence.
Litigating in the courts
Alberta, like all provinces in Canada other than Québec, is a common law jurisdiction. Pleadings are filed outlining each party's position, following which the parties are required to exchange all relevant documents and records. Depending on the matters at issue, this production may be extensive, and includes both paper and electronic records. Following production, parties have an opportunity for oral questioning (discovery) of opponents. Before proceeding to trial, a mandatory alternative dispute resolution process such as private mediation or judicial dispute resolution is required. If a matter is not resolved it will proceed to trial. Appeals follow the process outlined above.
The following characteristics of litigation in Canada in general and Alberta in particular are noteworthy:
• Civil jury trials are rare, with almost all commercial matters heard by a judge alone.
• General damage awards tend to be significantly lower than those in the United States, as the Supreme Court of Canada has placed a cap on damages for pain and suffering in personal injury cases.
• While punitive damages are available, Canadian courts have followed the English tradition of awarding these types of damages in lesser amounts and less frequently than in the United States.
• Although all lawyers are qualified as both barristers and solicitors, a litigation specialist is almost invariably retained.
Costs
The general rule in Alberta is that the unsuccessful party is responsible for bearing the costs of the successful party, as well as its own costs. 'Costs' include at least partial compensation for legal fees, plus disbursements. Two scales of recovery for legal fees are generally available: partial indemnity or full indemnity. The former is awarded in the vast majority of cases, with full indemnity typically being reserved for cases of egregious behaviour. Nevertheless, costs are almost always at the discretion of the court. Disbursements are generally substantially reimbursed, including expert fees.
Class actions
Alberta has liberal class action legislation, such that a wide range of subject areas have been accepted as appropriate for class treatment. Although class actions are more heavily case managed and settlements require court approval, following certification a class action will proceed as a traditional piece of complex litigation through discovery and trial, and the above-noted litigation process generally applies.
Energy litigation
Alberta's reputation as a politically and financially stable supplier of energy has made it a highly desirable source and investment target. The substantial commercial activity which this has produced has resulted in various forms of energy-related litigation, including regulatory hearings and appeals, First Nations concerns, oil sands procurement and construction disputes, and joint ownership and operatorship disagreements relating to both facilities and production. As the stakes in these sorts of proceedings are usually significant, a specialised Bar has developed with particular energy industry expertise.
Alternative dispute resolution
Alberta has a sophisticated environment for dispute resolution outside the courts, through arbitration, mediation and other ADR mechanisms. Arbitration is regularly selected in cross-border transactions involving Alberta, from one-off sale of goods contracts to multibillion-dollar investments in the oil sands. Parties choose arbitration for a variety of reasons, including to streamline the dispute resolution process, obtain industry expertise on the decision-making tribunal, maintain confidentiality, and ensure the enforceability of the ultimate award. Alberta law allows businesses to tailor the dispute resolution process to meet their individual needs. International agreements often incorporate external arbitration rules, such as rules of the ICC or AAA, with suitable additions or clarifications. Alberta arbitration legislation closely follows the UNCITRAL Model Law on International Commercial Arbitration. Canadian courts recognise the commercial arbitration process, and foreign awards are enforced under the New York Convention and the Model Law.