A Critical Analysis of Civil Procedure Rules 187 and 190: Stringency without Efficacy

Abstract

In the ongoing effort to modernize and improve the civil process, the Alberta Rules of Court were amended in 1999. Affidavits of records are automatically required within a fixed period of time and non-compliance is sanctionable by a virtually automatic right to double costs. This article traces the genesis of these new, uniquely Albertan procedural rules, then identifies several concerns and critically analyzes them. It concludes that in practice, the five year old amendments generally do not serve to expedite proceedings, reduce litigant or public costs, facilitate settlement on the substantive merits of the dispute, nor enhance the overall public perception of the administration of civil justice. In fact, they may have the opposite effect from what was intended of encouraging settlement and the prudent use of court time. The authors recommend that the current Alberta Law Reform Institute's Rules of Court Project should propose rescission of these recent amendments and return to the demand model reinforced by judicial case management and costs discretion.