CASUAL LEGAL: What happens to a set trial date if the trial no longer needs to proceed?

Attention: AMSC Members – Please distribute to all appropriate personnel

What happens to a set trial date if the trial no longer needs to proceed?

By Mikkel Arnston

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

Lawyers take the Court process very seriously; especially so when it comes to scheduling trials. In Alberta, trials occur relatively infrequently. When matters do proceed to trial, they require a large amount of time and resources from both the parties and the Court to prepare for, conduct, and then reach a decision.

As a result, trial dates are not dealt with lightly in the legal profession. In order to obtain a trial date, the parties must certify their readiness for trial. This allows the Court to commit appropriate resources and allocate trial times with some certainty the matter will proceed as scheduled. This also means that rescheduling a trial is not a mere procedural formality.

The Rules of Court provide for 3 circumstances in which a set trial date may be adjourned or cancelled by the parties. In each of the alternatives, and expressly mentioned within the Rules, it is not permissible for the parties or their counsel to agree amongst themselves to change the trial date or cancel it altogether.

The first way to cancel a set trial date is for the Plaintiff(s) to discontinue their claim. This is one mechanism by which the Plaintiff(s) can unilaterally end an action by filing a document with the Court to indicate that the Plaintiff(s) is no longer pursuing an action. A discontinuance can have cost implications for the Plaintiff(s) if any opposing parties have not agreed to waive their entitlement to costs for the proceeding up to that point. Also, in most cases, a discontinuance of action at this stage will mean the Plaintiff(s) will not be able to start over or make the same claims again, due to the passage of time and limitations on when parties can commence legal proceedings.

The second circumstance in which a set trial date may be cancelled contemplates settlement. If the parties reach a settlement on the eve of trial, not an uncommon occurrence, the parties must file a memorandum of settlement with the Court. The filing of a record of the settlement terms is critical. Many times the motivation for compromise and resolution will be elevated when trial is looming and costs, stresses and uncertainties are imminent for both parties. As soon as the trial is cancelled, parties may find it very tempting to have a change of heart and deny the terms of a settlement or that an agreement was reached in the first place. A record of the settlement that is both signed and filed is a strong evidentiary and practical tool when confronted with such buyer’s remorse. Without filing a signed record of the terms of settlement, if one party changes their mind and argues against the settlement, it can mean wasted resources both in terms of the settlement negotiation but also for any resulting litigation.

The final circumstance in which a trial may be cancelled is when the parties obtain the permission of a Judge. Circumstances arise when a trial must be adjourned or cancelled. The parties present their reasons to the Court and ask a Judge for permission to cancel or adjourn the trial and the Judge will hear arguments from interested persons opposing such re-scheduling.

Proceeding through litigation to scheduling a trial date takes significant time and resources. Litigants should however be comforted by the fact there are mandatory rules in place to ensure Court resources are not squandered by unfounded adjournments or last minute rescheduling of trial dates that have been set.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca, or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.