Legalviews Personal

Sometimes trying to file something in the Court of King’s Bench resembles running a race in the twilight over moving dark hurdles.

Where a deadline looms, filing and serving an appeal or an application in the Court of King's Bench is sometimes impossible. The court ordinarily will not allow a lawyer to file anything at the counter, even in an emergency. (Yet all self-represented can do that.) Court staff never acknowledge the same day whether filing was successful or unsuccessful. Why do court staff later deem a good document a nullity? There are many reasons. Sometimes where or when or how to file is very unclear. Or timely filings can be rejected well after the deadline because of minor flaws which could have been corrected in a couple of minutes if anyone had told the lawyer filing. Worse, even a counsel's absolutely correct and timely document may be later rejected as a nullity. Why? Because court staff labored or waited days beyond receipt to look at it, and by then some limitation period had just expired. (The Court of Appeal Registry does not create such retroactive nullities.)

What counsel must draft and do is often not clear, because the dangerous restrictions are not in a statute and not in a Rule of Court, and sometimes not even in a Practice Direction. Some restrictions are mentioned only in sudden announcements on the King’s Bench website. Quite often those announcements are contrary to what the Rules of Court say.

Many lawyers are hoping for a definitive decision about all this by the Court of Appeal. Recent King’s Bench decisions on the topic often feature odd facts, and so are distinguishable. (See 2023 ABKB 691, 2024 #612, and 2025 #s 206 and 289.)

Of course, valid actual legislation cannot be ignored or bypassed. But how to interpret it, or interpret a knotted web of instructions, is an important topic.

A recent King’s Bench decision distinguishes some other trial-court level precedents and disagrees with others. But it offers some suggestions for interpretation. And it gives several avenues of hope to counsel and litigants who did everything properly in time, yet still saw court staff later disqualify what counsel had earlier tendered in time. See Leyne v. Saint-Cyr 2025 ABKB 580 (Oct 6).

In the light of all this, I suggest six aims or principles to guide those drafting or interpreting statutes or Rules of Court about filing and service.

1. Court staff or even the Clerk of the Court should not be able to create new limitation periods not in any properly-enacted legislation, nor to shorten periods so enacted.

2. The court should sometimes be able to cure creation of nullities retroactively imposed after counsel had taken all appropriate steps in time.

3. Limitation periods for starting court proceedings should start running and end running, from and to knowable, defined events. Those might be objective fixed events, such as receiving a copy of an order. Or they might be things done by the party seeking to begin the court proceeding, such as giving the court a proposed document, or later giving the opponent a copy of the document.

4. The requirements for commencing a proceeding should all be ones possible to fulfil.

5. The court should be able to review or correct a decision by court staff or even the Clerk, especially if the decision was tardy, arbitrary, unreasonable, or plainly mistaken.

6. Statutes and the Rules of Court set the three methods for enacting or amending or repealing statutes and Rules of Court, and for publishing that. So, there should be limits on the ability of other documents to contradict statutes or Rules of Court. The Legislature, Rules Committee, and the Lieutenant-Governor, should not be thus bypassed.

In ancient Rome, laws were published by inscribing them in small letters high on a wall, so that (before the invention of the telescope) no one could read them. That then led to a rule of Roman law that legislation must be knowable by all citizens.

– Hon. J.E. Côté

IMPOSSIBLE FILINGS