One of the initial decisions a plaintiff must make when deciding to pursue a claim in Alberta is where to commence their action, that is, which judicial centre (i.e., city or town) is the appropriate venue for their claim. This article will review the considerations for selecting the venue for a claim in Alberta’s Superior Court, including the factors that are considered by the Court when hearing an application for a change of venue, as recently reviewed in the Alberta Court of King’s Bench decision of Behiels v Tibu, 2024 ABKB 12 [Behiels].
Selecting the Venue for a Claim
There are 13 judicial centres, or potential venues, for a claim brought before the Alberta Court of King’s Bench: Edmonton, Calgary, Red Deer, Grand Prairie, Fort McMurray, High Level, Peace River, Hinton, Wetaskiwin, St. Paul, Drumheller, Lethbridge and Medicine Hat.
The venue of an action is determined at the beginning of the claim, and is the location in which the plaintiff files their commencement pleadings, unless otherwise agreed by the parties or directed by the Court.
When selecting the location in which to file a commencement pleading, plaintiffs should adhere to Rule 3.3 of the Alberta Rules of Court, Alta Reg 124/2010 [Rules of Court], and file in:[1]
- the closest judicial centre, by road, to the Alberta residence or place of business of all of the parties; or
- where no single judicial centre is closest to all parties, the plaintiff should select the closest judicial centre, by road, to the residence or place of business to at least one of the parties.
Notably, where a party carries on business in more than one location in Alberta, the relevant place of business for the purpose of this analysis is the place of business that is closest to the location at which the matters at issue in the action arose.[2] For instance, if claim arose in Edmonton, the relevant place of business is the location in, or closest to, Edmonton.
Changing the Venue of a Claim
A party who wishes to change the venue of an action after commencement must bring an application under Rule 3.5 of the Rules of Court. Under Rule 3.5, the Court may order the transfer of an action from one judicial centre to another if it would be unreasonable for the action to be carried on in the judicial centre in which it was filed, or if the parties otherwise agree.[3]
“Reasonableness” is assessed on a balance of convenience. The transfer will be granted where the balance of convenience favours the proposed venue over the existing one, having regard to the following factors:[4]
- the number of parties or witnesses in the current and proposed judicial centres;
- the nature of the issues in the action;
- the relationship between the parties in respect of the issues in the action (i.e., the location of relevant interactions);
- the parties’ financial resources;
- the stage of the proceedings;
- the convenience of location for pre-trial motions; and
- the location of relevant assets.
The location of counsel may also be given some weight if the other factors are evenly balanced, however, it is not a decisive factor as counsel are generally expected to make themselves available at the proper judicial centre.[5]
The onus of proving reasonableness or unreasonableness under Rule 3.5 turns on whether the plaintiff complied with Rule 3.3 when commencing the claim. If an action was commenced in compliance with Rule 3.3, it is presumed to have been brought in the correct judicial centre and the party seeking to change the venue bears the burden of establishing that the plaintiff’s choice was unreasonable.[6] In contrast, if the plaintiff did not comply with Rule 3.3, there is no such presumption, and the plaintiff must establish that their choice was reasonable.[7]
Behiels v Tibu, 2024 ABKB 12
The above principles were recently affirmed by the Alberta Court of King’s Bench in Behiels. In Behiels, the Defendant / Plaintiff by Counterclaim, sought to transfer a Counterclaim (the only remaining claim in the action)[8] from Edmonton to Calgary. The Defendant / Plaintiff by Counterclaim had recently relocated to Calgary and alleged that continuing the action in Edmonton was unreasonable in light of factors such as her health concerns, the financial burden of travel and accommodation, and the location of witnesses. At the time of the application, the Plaintiff / Defendant by Counterclaim was located in Edmonton and was also experiencing health concerns, which he raised as a factor in support of the action remaining in Edmonton.
The Court denied the application, finding that relocation of a party is not sufficient, on its own, to compel a change in venue and, further, that the other factors raised by the Defendant / Plaintiff by Counterclaim did not, on a balance of convenience, favour a transfer. In particular, the Court found that the Defendant / Plaintiff by Counterclaim had provided insufficient evidence to establish a material financial hardship, and that other factors, such as with respect to the location of witnesses and health concerns of both parties, were “neutral” as between the two venues, as both parties would be similarly affected.
Key Takeaways
The appropriate venue for a claim is determined, in first instance, by Rule 3.3 of the Rules of Court, however, an alternative venue may be selected if it is more reasonable in the circumstances or on agreement between the parties. Relocation of one party, after an action has been commenced, and the location of counsel, alone are not sufficient to justify the transfer of an action, unless otherwise agreed to by the parties.
Miller Thomson LLP is here to help with your legal needs. Should you have any questions or need assistance with commencing an action in Alberta or elsewhere in Canada, please contact Miller Thomson’s Commercial Litigation team.
[1] Alberta Rules of Court, Alta Reg 124/2010 [Rules of Court] at Rule 3.3(1).
[2] Rules of Court at Rule 3.3(2).
[3] Rules of Court at Rule 3.5.
[4] Behiels v Tibu, 2024 ABKB 12 [Behiels] at paras. 12 and 15 citing Odland v Odland, 2017 ABCA 397 at paras. 20-22 and A. Lund, “Litigating on One’s Doorstep: Access to Justice and the Question of Venue,” (2019) Alberta Law Review 56:4 1039.
[5] Behiels at para. 12.
[6] Ibid at para 15.
[7] Ibid.
[8] At the time of the application, the Counterclaim was the only remaining claim as the underlying claim of the Plaintiff / Defendant by Counterclaim had been discontinued.
