October 2010 —
"Rules are not necessarily sacred; principles are."
(Franklin D. Roosevelt, Radio Address to the Young Democratic Clubs of America,
24 August 1935)
Benjamin J. Kormos[1]
I. Introduction
Rules of legal procedure have, since at least ancient times, provided the foundation of civil society. In Cicero's time in Republican Rome, civil and criminal procedure formed an integral part of the Roman legal machinery; it has been described as "one of the most durable things in Roman history."[2] In Franklin D. Roosevelt's time rules were no less important to society's efficient and civilized operation. In addressing the Young Democratic Clubs of America by radio on 24 August 1935, Roosevelt discussed the need for radical change in economic and employment laws and regulations, to "save [America's] economic structure from confusion, destruction and paralysis,"[3] and concluded that, while "[r]ules are not necessarily sacred; principles are."[4] These words underscore what ought to govern any set of rules of civil procedure - principles are what ought to govern; the drafting merely expresses principles.
1 November 2010 is the date on which the new Alberta Rules of Court[5] will come into force in Alberta.[6] These New Rules will replace the existing Alberta Rules of Court[7] that were enacted in 1968 and were directly traceable to the rules in force in 1914.[8] The Alberta Law Reform Institute (ALRI) states that the primary objective of the New Rules is to maximize: (1) clarity; (2) usability; (3) effectiveness; and (4) advancement of justice system objectives.[9] These are worthy aims, and the writer has no doubt that the New Rules will achieve them in due course.
The purpose of this post is to comment on one foreseeable issue with which the Alberta courts will wrestle almost immediately upon the New Rules' promulgation. In its attempt to deliver a set of rules that complies with its objectives of accessibility and simple language,[10] the Rules of Court Committee has included in the New Rules an interpretive provision, in r. 1.7(1), stating that "the meaning of [the New Rules] is to be ascertained from their text, in light of the purpose and intention of [the New Rules], and in the context in which a particular rule appears."[11] From this provision, ALRI has asserted that the entire body of case law decided under the Old Rules ought to be ignored. This paper will challenge that assertion, because it flies in the face of the well-established rules of statutory interpretation, the principle of stare decisis, and judicial efficiency.
II. The Rules Are Not Necessarily Sacred; Principles Are
On its face, the directive under r. 1.7 states nothing other than a long-standing principle of statutory interpretation. However, the problem arises from assertions made by a presenter from ALRI at the 12 April 2010 Legal Education Society of Alberta (LESA) seminar introducing the New Rules. Both the text materials summarizing ALRI's presentation,[12] and ALRI's presenter,[13] indicate that the case law decisions rendered under the Old Rules do not apply by analogy to the New Rules. Under the heading "Interpreting the New Rules," ALRI's written materials for the seminar cite the language of r. 1.7, and state that "[p]rior case law will have little relevance for future practice."[14] In the oral presentation, ALRI's presenter quotes the words of r. 1.7[15] and asserts that "the rules include internal principles for interpretation,"[16] and "under the New Rules, the old cases don't matter,"[17] and that "it's this change in [internal] interpretation principles that provides the basis for a clean break with the old case law."[18] ALRI even cautioned against comparing Old Rules to similarly worded New Rules.[19]
From those statements, it essentially appears to be ALRI's position that judges ought not even to consider the established case law, but should rather reinvent the principles of civil procedure in Alberta by beginning anew in their interpretation of a given rule in each motion or trial before them. That position is, perhaps, both an overstatement of the text of r. 1.7(1) of the New Rules, as well as contrary to established principles of statutory interpretation and the jurisprudence from other provinces that have undergone similar transitions to new rules of civil procedure.
Ontario has undergone a very similar transition from rules of civil procedure descended from the English rules to modern, abridged Rules of Civil Procedure.[20] The Ontario courts have, in interpreting changes to their rules, compared old language to new, and applied the established principles where the language is similar. This began quite early in their history, with the transition from English rules to the provincial rules,[21] and has continued into the modern era of their new, more abridged rules.[22] In particular, in L.C.D.H. Audio Visual Ltd. v. I.S.T.S. Verbatim Ltd.,[23] Henry J. provided the following helpful guidance:
I turn next to the principles that should guide the court in exercising its discretion under rules 30.04(8) and 31.06(5). Prior to the enactment of these rules, the general principle which has allowed the court to sever productions and discovery was found in former Rule 351.
While there are differences in wording and the new rules are more tightly drafted, the fundamental purpose of the old and new rules is the same - that where the right to disclosure of particular information that is germane to an issue (such as damages) that arises only when a threshold issue (such as liability) has been determined, the court may postpone discovery and production of information on the "consequential" issue when the two issues are clearly severable. In any case, the decision is in the discretion of the court having regard to all the circumstances. Judicial decisions on former Rule 351 are of assistance under the new rules. Prior to the coming into force of the new rules, the courts had already developed a tendency to postpone discovery on the consequential issue only in the clearest of cases.[24]
In some instances, in criminal litigation to which their new rules applied, the Ontario courts provided some reprieve, or "a brief familiarization period of a few years," to counsel still operating under the former rules, following their transition.[25] In doing so, the Court relied on r. 2.02 of the Ontario Rules, which allows the Court to relieve the parties from strict compliance where necessary and in the interests of justice.[26] A similar reprieve provision appears in Alberta's New Rules.[27]
While this post does not necessarily advocate adopting the latter approach without modification - especially to civil litigation, as opposed to criminal litigation to which it was applied - it lends support to the approach this post does advocate: that the New Rules do not deprive the Alberta courts of their interpretive role and their discretion in applying the New Rules.
British Columbia[28] and New Brunswick[29] have also undergone transitions from the old English rules to modern rules. The British Columbia courts' approach is substantially similar to the Ontario approach. In Pelech v. Pelech,[30] the Court referenced the old rules to interpret their new rules:
On 19th April 1977 Mr. Griffiths issued and served a "notice of trial" and a notice requiring a jury trial purporting to be pursuant to R. 39(19) of the new Supreme Court Rules in the Pelech case. He did the same in the Viney case on 2nd May 1977. The new Supreme Court Rules came into effect on 1st February 1977.
...
The issue simply is what is "the notice of trial" within the meaning of that rule. "Notice of trial" under the old Rules of Court clearly meant the notice given when the action was first set down for trial: Guenette v. B.C. Electric Ry., [1944] 3 W.W.R. 67, 60 B.C.R. 261, [1944] 3 D.L.R. 379.
Counsel for the plaintiffs argues that the old Rules of Court contemplated only one notice of trial for the purposes of the corresponding rule (M.R. 430) but that the new Rules of Court contemplate, for the purposes of this rule, more than one or any number of notices of trial in appropriate circumstances. I simply do not agree. I see no reason for interpreting the new rule any differently than M.R. 430 of the old rules.[31]
One New Brunswick decision interpreting their new rules took a somewhat different and, it is acknowledged, refreshing approach. In Belmont Hotel Ltd. v. Atlantic Speedy Propane Ltd.,[32] the Court stated that "[i]f judges decide to interpret the new rules, couched in similar language, as was done with the previous rules, nothing will have been gained by years of work."[33] In that case, the Court was applying a new, seemingly broader, discretion provided by their new rules to sever the issue of liability from the issue of damages.
No doubt Alberta's New Rules will require a fresh interpretation, but the learned New Brunswick Justice in Belmont Hotel was not contending that the courts should ignore the established statutory interpretations in exercising the discretion provided in their applicable new rules - only that the genuinely new language ought to be given effect in exercising such discretion. Accordingly, in deciding how the discretion of whether to sever the issues should be exercised in Belmont Hotel, Barry J. quoted the similar English Rule, and stated, "I accept as the general rule that an order of severability should not be made unless there are exceptional circumstances,"[34] before he considered the applicable facts in the case and ultimately ordered the issues to be severed. Thus, the principles established in jurisprudence interpreting the language of the rules need not be discarded, but should continue to apply to new rules using substantially similar language. While it would be wasteful to ignore the New Rules' genuinely new language, it would be equally wasteful to ignore the efforts of past case law in interpreting substantially similar language. Using the old case law to interpret substantially similar rules in similar ways preserves stare decisis, as well as judicial efficiency. Natural justice is also well served by the predictability that this approach would preserve.
Admittedly, the Ontario and New Brunswick Rules contain a different interpretation provision, which states that they shall be "liberally construed to secure the just, most expeditious and least expensive determination"[35] of a proceeding, and the British Columbia Rules state that "[t]he object of [their rules] is to secure the just, speedy and inexpensive determination of every proceeding."[36] While those provisions are broader, r. 1.7 of the Alberta New Rules does not restrict the court's ability to interpret the New Rules in a similar fashion, nor does it expressly preclude applying the interpretive principles from the old cases. It merely requires the court to ascertain the meaning with reference to the text, purpose, and intent gleaned from the context - it does not preclude the well-established principle of interpretation that similar words (that is, Old Rules to New Rules) in similar contexts should be imbued with similar principles. This is especially true where similar facts are before the court in a given case.
Therefore, with respect to ALRI's position to the contrary, interpreting the New Rules with reference to the interpretations established in past case law for similar rules under the Old Rules would not "ignore the clear instruction in the [New Rules] that they are to be interpreted in light of their text, context, purpose, and intent."[37] Rather, the decisions rendered from the wording of similar Old Rules flows logically from the words, and the context of the rules as principles of civil legal procedure. This is apparent from an application of the long-standing principles of statutory interpretation, from the jurisprudence from other provinces that have undergone similar transitions, and from common sense.[38] To preserve natural justice and predictability in applying the law as one of its primary principles, litigants should be entitled to look to past cases rendered by judges considering substantially similar rules. After all, why reinvent the wheel simply because the New Rules are now abridged and have been updated to nudge them into line with modern practice?
In practice, it is easy to foresee, for instance, that some of the rules will inevitably be similar in purpose and intent to Old Rules that deal with the same matters. Take the old r. 159 for summary judgment, compared to the new r. 7.3 for summary judgment, for example. Rule 7.3 is, on its face, simply an abridgement of the old r. 159. For that reason alone, the courts would not be doing violence to the purpose, intent, and context of the New Rules to apply the well-known common law principles that have developed over decades of litigation under r. 159 of the Old Rules, simply because substantially identical words have been parsed into sub-paragraphs in the New Rules. Doubtless, other examples of this can be found in the New Rules. It would be absurd to suggest that courts ought to devote countless resources to begin anew to develop new principles, where the same concepts, purposes, and contexts of civil legal procedure prevail. To do otherwise could waste judicial resources, do violence to stare decisis, and interfere with the litigants' rights to natural justice by eroding the predictability of judicial outcomes that guides their decisions.
III. Conclusion
Interpreting the New Rules with reference to the principles of civil procedure established in the case law decided under the Old Rules will not thwart what ALRI asserts, in their presentation, to be the New Rules' "internal interpretation provisions."[39] On the contrary, there is likely no better way to ascertain the meaning and principles applicable to a new rule that is worded similarly to an old rule, or which carries a similar purpose, than to look to the readily available jurisprudence established under the Old Rules (or even substantially similar English rules).
That is not to say that the courts ought simply to adopt the old decisions without modification. The courts ought, of course, to consider the New Rules' wording carefully, and exercise their discretion accordingly. However, the most logical compass with which to plot the first steps of the journey into the New Rules is the body of established interpretations in the Alberta jurisprudence. After all, both the New Rules and the Old Rules are just that - rules. Although there may be challenges presented in interpreting genuinely new wording in the New Rules, courts and litigants may find much reassurance by looking to the principles already established in the case law, in conducting that interpretation. As Franklin D. Roosevelt said, "[r]ules are not necessarily sacred; principles are."[40] It is hoped that the wisdom inherent in those words will not be lost on the Alberta courts in implementing our exciting and challenging transition.
[1] Barrister & Solicitor, B.A. (Calgary), LL.B. (Sask.), of Walsh Wilkins Creighton LLP. Benjamin Kormos is a member of the firm's Litigation Group, focusing on general Civil Litigation, Estates Litigation, First Nations law, Debtor-Creditor Litigation, and Insurance Litigation. He is the author of papers published in the International Business Law Journal, Criminal Law Quarterly, and Intellectual Property Journal, and has been cited in Chris Madsen, Military: Law and Operations, Rel. 4, looseleaf (Aurora, Ont.: Canada Law Book, 2008). The author would like to thank Ashley Smith of MacPherson, Leslie & Tyerman LLP (Saskatoon) and Michael Johnston of Greenspan Humphrey Lavine (Toronto) for their most astute review and advice. The views expressed by the author herein are the author's alone and are intended neither as a legal opinion nor as an expression of the views of Walsh Wilkins Creighton LLP.
[2] A.H.J. Greenidge, The Legal Procedure of Cicero's Time (Oxford: Clarendon Press, 1901) at viii-ix.
[3] This speech was a precursor to the 1935 securities and credit reforms.
[4] Franklin D. Roosevelt (Radio Address to the Young Democratic Clubs of America, 24 August 1935), online: The American Presidency Project <http://www.presidency.ucsb.edu/ws/index.php?pid=14925>.
[5] ALRI, Alberta Rules of Court - Draft 8 (Edmonton: ALRI, 2010), online: Alberta Courts <http://www.albertacourts.ab.ca/LinkClick.aspx?fileticket=nE63Bp0FClQ%3d&tabid=310> [New Rules].
[6] ALRI, Rules of Court Project - Final Report No. 95 (Edmonton: ALRI, 2008), online: ALRI <http://www.law.ualberta.ca/alri/docs/FR95.pdf> [ALRI Report].
[7] Alta. Reg. 390/68 [Old Rules].
[8] ALRI Report, supra note 6 at para. 5. The 1914 Rules themselves traced their origins to the 1893 Judicial Ordinances of the Northwest Territories and in many instances, originally, the English Rules of Court: Alberta (Treasury Branches) v. Leahy (1999), 254 A.R. 280 at Appendix A. See also Capitanescu v. Universal Weld Overlays Inc. (1997), 204 A.R. 81 at para. 35 (Q.B.); Highlander Cleaners Ltd. v. Elite Insurance Co. (1986), 76 A.R. 247 at para. 5 (Q.B.); Elves v. Gas & Oil Products Ltd., [1945] 1 W.W.R. 58 at 61 (Alta. S.C.); Mills v. Magrath (1907), 7 W.L.R. 74 at 78-79 (Alta. S.C.).
[9] ALRI Report, ibid. at para. 9.
[10] Ibid. at paras. 9, 47.
[11] New Rules, supra note 5.
[12] LESA, "Highlights of Significant Changes" in The New Rules of Court: A Seamless Transition (Materials from the LESA Seminar, Edmonton, 12 April 2010) at 22 [Seminar Materials].
[13] Sandra Petersson, "The How and When of the Major Changes - Highlights of Significant Changes" (presented at the LESA Seminar, Edmonton, 12 April 2010), available by webcast online: Gowebcasting <http://www.gowebcasting.com/events/legal-education-society-of-alberta/2010/04/12/the-how-and-when-of-the-major-changes-highlights-of-significant-changes/play/stream/342> [Petersson Presentation].
[14] Seminar Materials supra note 12 at 34.
[15] Petersson Presentation, supra note 13 at 00:52:08 - 00:52:17.
[16] Ibid. at 00:2:45 - 00:2:47.
[17] Ibid. at 00:3:07 - 00:3:10.
[18] Ibid. at 00:51:47 - 00:51:55.
[19] Ibid. at 00:57:40 - 00:57:57.
[20] R.R.O. 1990, Reg. 194 [Ontario Rules].
[21] See e.g. Evans v. Kingsmill, [1847] O.J. No. 33 at para. 8 (Q.B.) (QL).
[22] See e.g. Diamond v. Kaufman, [1985] O.J. No. 1653 at para. 6 (S.C.) (QL), stating that "Rules 30.06(8) and 31.06(5) are practically identical in their terms. A comparison with former R. 351 is useful" [emphasis added]; Lalande v. Constitution Insurance Co. of Canada, [1986] I.L.R. 1-2071 (Ont. Dist. Ct.) stating that "[a]s this case fell within the transition period between the Old Rules and the New Rules of Civil Procedure, reference was made by both counsel to Old Rules 8 and 178 and New Rule 3.02" (at 7988) [emphasis added], and also stating that "[w]ithout making an [extensive] review of the caselaw, it is worth noting that under former rule 8 and 178, renewals of writs were granted even when an application was made outside a limitation period so long as the writ itself had been issued within that period" (at 7989) [emphasis added].
[23] (1986), 54 O.R. (2d) 425 (S.C.).
[24] Ibid. at 427-28 [emphasis added]. See also ibid. at 430-31.
[25] R. v. Lowns, [1999] O.J. No. 4443 at para. 21 (Ct. J.) (QL).
[26] Ibid. at paras. 13, 22.
[27] Supra note 4, r. 1.5. See also a similar prerequisite at r. 1.5(4)(d).
[28] Supreme Court Civil Rules, B.C. Reg. 168/2009 [British Columbia Rules].
[29] Rules of Court, N.B. Reg. 82-73 [New Brunswick Rules].
[30] (1977), 3 B.C.L.R. 115 (S.C.).
[31] Ibid. at 116 [emphasis added].
[32] (1982), 41 N.B.R. (2d) 403 (Q.B.) [Belmont Hotel].
[33] Ibid. at para. 11.
[34] Ibid. at para. 6.
[35] Ontario Rules, supra note 20, r. 1.04(1); New Brunswick Rules, supra note 29, r. 1.03(2).
[36] Supra note 28, r. 1-3(1) [emphasis added].
[37] Petersson Presentation, supra note 13 at 01:02:57 - 01:03:09.
[38] Further support for this argument is found in the ALRI Report, supra note 6. That report includes a reference table that essentially cross-references Old Rules to New Rules (at Appendix G). This is, itself, an implicit acknowledgment that the New Rules do not spring to life fully formed but, rather, reference of one to the other is useful to get one's bearings and discern the New Rules' meaning.
[39] Petersson Presentation, supra note 13 at 01:02:10 - 01:02:11.
[40] Supra note 4.
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