My Way or the Highway: Alternative Resolution Processes

There are several alternatives to litigation, known as Alternative Dispute Resolution (ADR) methods. These methods aim to resolve disputes outside of traditional court proceedings and can be more cost-effective, time-efficient, and less adversarial. ADR tends to allow the parties to be more creative in how their issue is determined, and the solutions available to get to a resolution. The most common alternatives to litigation are mediation, arbitration, or negotiation.

Mediation: Mediation involves a neutral third party, the mediator, who facilitates communication between the parties in dispute. The mediator helps them identify common ground, explore options, and reach a mutually acceptable resolution. The process is non-binding, meaning that the parties can choose to accept or reject the proposed solution.

Arbitration: Arbitration is a more formal process than mediation. It involves an impartial third party, the arbitrator, who reviews the evidence presented by both sides and makes a binding decision to resolve the dispute. Arbitration can include oral testimony from witnesses, written arguments from counsel or a combination of the two. Arbitration may be faster and more flexible than court proceedings, and the parties can agree on the rules and procedures to be followed.

Negotiation: Negotiation is an informal process where the parties directly communicate and attempt to reach a settlement on their own or with the assistance of their legal representatives. It is the most basic form of ADR and can occur at any stage of a dispute. Often negotiation is a key part of the litigation process, and sometimes is called a settlement conference.

Our Litigation Team at Robertson has the experience you need to determine if ADR is right for you.  To find out more about Alternative Dispute Resolution contact our Litigation Team today.

Disclaimer: The information on this website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


The Top 7 Costs of Litigation

The cost of litigation can vary significantly depending on the complexity of the case, the type of court involved, the duration of the proceedings, the number of parties involved, and the legal fees of the lawyers representing each party. Litigation costs can be substantial and may include various expenses. Common factors contributing to the overall cost of litigation are below:

  1. Legal Fees: The primary cost in litigation is the fees charged by the lawyers representing the parties involved. Legal fees are typically charged based on a lawyer’s hourly rate, which varies depending on their experience and expertise.
  2. Court Fees: Courts often charge filing fees for initiating a lawsuit or filing certain documents during the course of litigation. The amount of court fees can differ depending on the type of case and the court involved.
  3. Document Production: The costs of collecting, reviewing, and producing relevant documents during the discovery phase can add to the overall cost.
  4. Discovery and Questioning: During the discovery process, parties may incur expenses related to gathering evidence, conducting investigations, and deposing witnesses. Additional fees may occur in booking court reporters and ordering transcripts.
  5. Expert Witnesses: In some cases, parties may need to hire expert witnesses to provide specialized knowledge or opinion on specific aspects of the case. Expert witness fees can be substantial.
  6. Appeals: If the case is appealed to a higher court, additional expenses will be incurred for the appeal process.
  7. Alternative Dispute Resolution: In some cases, parties may opt for mediation or arbitration as a less expensive alternative to litigation. However, ADR processes may also involve costs.

It is essential for parties involved in litigation to consider the potential costs and benefits before pursuing legal action. It’s important to remember that the cost of litigation can be highly unpredictable and depends on the unique circumstances of each case. To get a more accurate estimate of the potential costs involved, it is advisable to consult with a lawyer who can provide personalized information based on the specific details of the case. Contact our Litigation Team today for more information.

Disclaimer: The information on this website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


Litigation Series: The Discovery Process

The Discovery phase in the litigation process is essential to any lawsuit. Both parties exchange information and evidence relevant to the case. It allows each side to gain a better understanding of the other’s claims, defenses, and evidence.

In Alberta, discovery is broken into two parts, document discovery and oral discovery.

In the first stage, the parties prepare and compile all the documentary evidence that is relevant and material to their case in an Affidavit of Records. This can include contracts, emails, financial records, photographs, and other evidence. This is exchanged between the parties.

The second stage is oral discoveries, or Questioning, as we call it in Alberta. This involves oral testimony given under oath before a court reporter. Lawyers for both sides can question parties, or other individuals who have knowledge of the facts or issues in the case. Questioning allows the lawyers to assess the credibility of the witnesses and gather additional information.

Other less common components of discovery can include:

  • Requests for Admission: Requests for admission are statements presented to the other party that seek to establish certain facts or matters as undisputed. The receiving party must respond, either admitting or denying the statements.
  • Interrogatories: Interrogatories are written questions one party sends to the other. The receiving party must respond in writing under oath within a specified timeframe. These questions may seek details about the parties involved, the facts of the case, the legal claims, and the evidence each side intends to present.
  • Expert Witness Disclosures: If expert witnesses will be called during trial, each side must disclose the identities of their experts and provide a summary of their anticipated testimony and opinions.

Remember that the discovery process is part of the litigation strategy to gather information and evidence for trial. Proper preparation and understanding the discovery process can help ensure your case is presented effectively when it comes to trial or negotiation for settlement.

Disclaimer: The information on this website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


Where to Start your Case: A Guide to the Courts in Alberta

There are three levels of Court in Alberta: The Court of Justice (formerly known as the Provincial Court of Alberta), The Court of King’s Bench, and the Court of Appeal. Each has its own characteristics that should be considered when starting a claim.

The Court of Justice:

This is the lowest level of court in Alberta and handles a wide range of matters, including criminal cases, traffic violations, family matters and civil disputes. For civil disputes, the Court of Justice can hear most private disputes including residential tenancy matters. The maximum amount that may be claimed is $100,000. 

Additionally, this court does not have jurisdiction to hear claims involving ownership of land, or matters involving wills, malicious prosecution, false imprisonment or defamation. For example, a lien claim would need to be pursued in the Court of King’s Bench.

The Court of King’s Bench

This is the superior level court in Alberta, and has jurisdiction over more significant civil claims, serious criminal cases, and appeals from the Provincial Court. It also deals with various family law matters, including divorces and adoptions. There is no financial cap in this level of court.

It has the jurisdiction to hear civil matters ranging from contract disputes and property disputes to personal injury claims and matters involving large sums of money. In addition to its civil division, the Court of King’s Bench handles serious criminal matters, divorce, and estate administration.

The Court of Appeal of Alberta:

The Court of Appeal is the highest court in Alberta. It hears appeals from decisions made by the Court of King’s Bench and certain decisions made by the Provincial Court. The Court of Appeal typically consists of a panel of three or more judges who review the lower court’s decisions to determine if any errors were made.

Our Litigation Team at Robertson has experience in all three levels of Court in Alberta. If you have a dispute and you are not sure where to start, please contact our team for a consultation.

Disclaimer: The information on this website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


Determining Cost Awards in Litigation

The most common question clients have at a consultation is “will I get my legal fees back if we win?”

In typical lawyer fashion, our answer is “it depends”.

The general guideline in Alberta follows the idea that the prevailing party in a lawsuit may be awarded costs at the end of the case.

“Costs” refer to the expenses and fees incurred during the litigation, which can include legal fees, court fees, expert witness fees, and other reasonable expenses related to the case.

When a court awards costs to the prevailing party, it means that the losing party is typically required to pay a portion of the winning party’s legal expenses. The purpose of awarding costs is to compensate the successful litigant for the expenses they had to bear to pursue or defend the lawsuit. It also serves as an incentive for parties to resolve disputes through litigation rather than engaging in frivolous or meritless lawsuits.

It’s important to note that the amount of costs awarded is usually subject to the court’s discretion, and it may not cover the entire amount spent by the winning party on legal fees and expenses. The court will consider factors such as the complexity of the case, the conduct of the parties during the litigation, and the reasonableness of the costs claimed before making a decision on costs. In the Court of King’s Bench, there is a tariff schedule which caps the costs that can be awarded for a particular step in the general course of litigation.

In some instances, the court may also order one party to pay “special costs,” which are higher than the usual costs. Special costs may be awarded when a party’s conduct during the lawsuit is found to be unreasonable or in bad faith. Solicitor-Client costs fall under the umbrella of special costs and are only awarded where there has been egregious behaviour from the other party.

It is essential for clients to consult with legal representatives to understand the specific rules and potential cost implications in their particular situation. To learn more about costs, contact our litigation team today.

Disclaimer: The information on this website is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.


Wills and Estates FAQ’s

A Will sets out how your assets are to be divided upon your death. A Will can further provide direction for business, guardianship of minor children, special needs dependents, funeral arrangements, and management of death related expenses, among other things.

An Enduring Power of Attorney sets out who will manage your property and financial affairs should you become incapacitated, or, depending on your wishes, prior to such an event occurring.

A Personal Directive (AKA “Living Wills”) allows you to direct who will make important decisions with respect to your care should you be unable to make those determinations for yourself. They outline your wishes for matters such as the type of care you wish to receive or not receive and where you will live should you need more advanced care than can be provided in your home.

Please contact our team directly to discuss your Wills & Estates needs. Our lawyers will provide you with an easy to navigate Questionnaire to begin the process, and to keep it as streamlined and stress-free as possible.

A Will is the legal statement of a person’s last wishes about how to divide his or her property after death. The property that is distributed following the instructions in a will is known as the estate.

The property that you own at the time of your death, including land and possessions, which is distributed following the instructions in your Will is known as your Estate. The property in your Estate is first used to pay debts and taxes. It is then distributed in accordance with the instructions in your will.

A personal representative (formerly known as an executor) is the person named in a will to carry out the directions contained in the will. The personal representative is responsible for settling the person’s affairs after death. The person’s estate passes temporarily to the personal representative.

Why do I need a Will? What does it do? What if I do not have one?
Wills set out how your assets are to be divided upon your death. They can further provide direction for businesses, guardianship of minor children, special needs dependents, funeral arrangements and management of death related expenses, among other things.

If you do not have a Will in place, the distribution of assets, management of your estate and any guardianship will be left to the courts to decide based on Alberta Law through a lengthy and often stressful process called Probate.

Through a Will you can also name your personal representative (formerly known as an Executor). This is the person whom you trust to have the authority to ensure that your wishes are carried out and to ensure that all your affairs are in order.

No, a will is optional and voluntary. While it is extremely important to consider making one, you do not have to, and no one can make you sign one if you do not want to do so.

Our Lawyers will provide you with an easy to navigate, fillable Questionnaire that will guide you through all the required questions and let you know what information needs to be provided.

You will require at minimum the following information for anyone named in your Will (such as children, spouse, proposed guardians, and other beneficiaries):

Birth Dates

You will also need to keep some form of record for amounts of all debts, including mortgages, car loans, student loans, business loans and credit card accounts.

You will need to provide a list of assets, including detailed information regarding the following:

Real Estate
Bank Accounts
Investments (stocks, bonds, mutual funds etc.)
Pension / Retirement Accounts
Life Insurance Policies
Ownership Interest in a Business
Cars, boats, planes and any other vehicles
Any valuable personal property

You should be sure to provide information regarding any existing Wills, Trusts, Divorce Judgements, Custody Agreements, Prenuptial Agreements and any other legal documents that may affect your Will.

Because of the extent of information provided in your Will, you should be sure to revisit your Will periodically to update it upon certain major life changes to ensure that it is still an accurate reflection of your wishes.

There are certainly advantages to having a lawyer prepare your will. He or she has a lot of expertise that you can call upon to deal with matters like tax consequences, international issues, trusts, making suitable arrangements for young children among many other issues.

Wills must be worded very carefully and precisely to make sure that exactly what you want happens. Lawyers are skilled in the careful and precise use of language. It is important to note that making a verbal recording of your wishes (such as video, voice recording, CD or MP3) is not enough and will not be considered a valid will.

A Codicil is a legal document that allows you to make additions or changes to the terms of your will. Once it is completed, it will become a part of your original will.

Having the mental capacity to make a will means that you must:

Know that you are making a will and understand what a will is;
Know what property you own; and
Be aware of the people (such as a spouse and children) you would normally provide for.

In addition, you must know and approve of the contents of your will. If you were misled, whether by fraud or accident, or someone put undue influence on you, your will may later be found to be invalid.

This is another reason for meeting with a lawyer to discuss your will. This may provide proof that the will was made by your own free choice. Further, you should be alone with the lawyer when making your will. You should be comfortable and able to speak freely without concern of other parties.

A witness must:
Be 18 years of age or older;
Cannot be a beneficiary under the will; and
Cannot be the spouse or the adult interdependent partner of someone who is a beneficiary under the will.

The witness does not need to read your will. All they must do is see you sign your name to the will, and then they will sign in front of you.

It depends on your situation. Many people choose to put their will in a safe place that their personal representative knows about and can be easily accessed (i.e. a safety deposit box at their bank). Others choose to leave it with a trusted third party such as their lawyer.


Robertson LLP provides you with an easy to navigate, fillable questionnaire that will prepare you to take the first step. Let us guide you through it!


What Is A Restrictive Covenant?

A restrictive covenant is an agreement between the owners of the affected properties, which places limitations on what can be done on such property.

In newer community developments, a restrictive covenant may be put in place by developers to maintain the value of the properties located in a given subdivision by ensuring uniformity in the architectural and landscaping controls. These restrictions may include the material type or colour of the roof, or the exterior wall material or fences. Another example may be a restrictive covenant limiting the minimum distance to be maintained between the street and a house, or a restrictive covenant preventing the storage of any boats or trucks in the driveways, or prohibiting the installment of satellite dishes or clothes lines, or there may be a restriction placed on whether a business may be run from the property or not.

Once registered, the restrictive covenant runs with the land and will remain on the property title, also binding the subsequent owners of the land.

Restrictive covenants do not have an expiration date unless there is intentionally an end date included within the covenant – this is rarely ever so. Because there is no expiration date some covenants from as far back as the 1800’s will still run with the land and remain in force on the property title. Some older restrictive covenants quite often may be more complex, such as the ones that include restrictions on use (such as only a single family dwelling being permitted) and on the location of buildings (such as the setback from the street). It is possible that a home is built in compliance with current municipal regulations, but it may contravene a restrictive covenant on the title. The property could even have a real property report with a compliance certificate from the municipality and yet there might still be a defect on title if it is not consistent with the restrictive covenant.

It is possible to remove or amend restrictive covenants on title. However, in order to remove a restrictive covenant completely it may be a lengthy process, a court application and a requirement to address potential community concerns. In certain instances, it may be possible to amend a current restrictive covenant rather than to remove it entirely, but the viability of this is determined on a case by case basis and is particular to the nature of the restrictive covenant.


If you have a restrictive covenant registered on title, it is vital to understand what this document entails before signing the purchase contract. There is no guarantee it can be removed or amended, and it is a restriction as to what the buyer can or cannot do with the subject property.

Questions about interrupting your restrictive covenant? Contact our team today. We’re here to help!


Party Wall Agreements


A party wall is a common wall shared between owners of adjoining properties. Examples of this include semi-detached townhouses, adjoining condominium units or duplexes.


A party wall agreement details the rights, obligations, and ownership with respect to the common wall (the party wall). The agreement will provide specific details such as: maintenance obligations, encroachments of the wall on to the neighboring property and restrictions on renovations or alterations. The agreement must be signed by all parties that share the party wall. 


A party wall agreement is always recommended. If you purchase a property without such an agreement in place, speak to your lawyer about creating a proper agreement between yourself and the other party, and having it registered on title to avoid any potential disputes in the future.


Yes. In the instance of a home purchase, your lawyer will review the existing party wall agreement registered on the title of the home. They will explain your rights, ownership and obligations as agreed to in the existing party wall agreement and advise you if there is anything that may be of concern. It is important to understand what you and your neighbors can / cannot do in respect to your property and any shared common wall(s) (party wall).


New Home Warranty Programs

With a new build home, it is entirely possible that construction flaws may reveal themselves immediately upon purchase, or a few months or even a few years after purchasing the newly built home.

As of February 1, 2014, every new build home in Alberta is protected under warranty. Alberta’s New Home Buyer Protection Act (“NHBPA”) advocates for very high-quality standards in order to make sure that every new home stands the test of time. This applies to all new homes constructed by builders ranging from condominiums, recreational properties, manufactured homes, multi-family homes, duplexes to single-family homes.

A new home warranty is an insurance product that protects your home from material, labour and structural defects that may arise after construction. The warranty stays with the home, whether you are the original owner or subsequent buyer and typically lasts for 10 years.

Before you sign a contract with a builder, it is essential to verify that your chosen home builder is registered with a warranty provider, and for you to understand what is covered, for how long it is covered and what potential defects may not be covered.


While there are a number of warranty providers in Alberta, the one that is the most popular amongst builders is the Alberta New Home Warranty Program. Founded in 1974, the Program is currently Alberta’s largest home warranty provider with over 700 Builder Members.


According to the Alberta’s New Home Buyer Protection Act (NHBPA) legislation, at a minimum the warranty on each new home will provide “1-2-5-10” coverage.

1 Year – Labour and Materials

Mandatory warranty includes one year’s coverage for defects in materials and labour. This addresses issues with the way your home was built or the materials it was built with. It includes such items as flooring, trim and fixtures.

2 Year – Distribution Systems

New home warranty must cover defects in labour and materials related to heating, electrical and plumbing systems for two years from the warranty commencement date.

5 Year – Building Envelope

Homebuilders in Alberta must provide five years’ coverage for defects in the building envelope and must offer an optional two-year extension on building envelope coverage for a total of seven years’ coverage.

10 Year – Structural Integrity

Mandatory warranty covers the key structural components (for example, the frame and foundation) of single-family homes and multi-family dwellings for 10 years from the warranty commencement date.

Should the home become uninhabitable as a result of a defect or while warranty work is underway, programs such as the Alberta New Home Warranty Program will pay a daily rate up to a maximum amount for reasonable living expenses incurred by the insured.

It is important to understand that as with any coverage, a new home warranty will come with coverage limits. These limits differ based on the type of dwelling: Single-family, multi-family registered under a condominium plan, warrantable common property, or a non-condominium multi-family unit (Ex. A duplex, or row townhouse.)


The Alberta New Home Warranty Program offers pre-possession insurance for single-family homes, which is a combination of deposit insurance and home completion insurance. The Government of Alberta does not mandate the inclusion of pre-possession and deposit insurance coverage in every new home warranty, and it is an entirely optional product that the Alberta New Home Warranty Program chooses to offer to its members. Additions like this are important to understand and look for when it comes to reviewing the inclusiveness of the offered warranty through your chosen builder.


The Alberta New Home Warranty Program also offers the Alberta Renovation Warranty Program via their members. The Program imposes strict standards for membership thus giving the homeowners complete confidence in their chosen renovators.

The Alberta Renovation Warranty Program combines deposit protection insurance up to $100,000.00 with Warranty Insurance that covers materials and labor up to $100,000.00 and provides comprehensive protection from the moment a homeowner engages with the renovation company until two years after the work is substantially completed.

Questions about purchasing a new construction home? Questions about your New Home Warranty or the Builder’s contract? Contact our real estate lawyers Here.


What Is An Encroachment Agreement?

Often, a purchaser may discover that the property they are buying encroaches on someone else’s property, or vice versa, that there is an encroaching improvement on the property they are buying. This encroachment could be on or by a private property or municipally owned land. This can be dealt with by utilizing an encroachment agreement.


An encroachment agreement is a legally binding real estate document signed by neighboring property owners when a property encroachment is found to exist. An encroachment agreement acknowledges and describes the encroachment, identifies the owner of the encroachment, and states the agreed-upon resolution. The encroachment agreement becomes binding between the two properties and once the encroachment agreement is registered it runs with the land-meaning it will remain registered on the Certificate of Title even after the original owners sell.


Fence lines can be the most common type of structure that may encroach onto a neighboring property. A few other examples of frequently seen encroachments are structural additions, the original house, decks, sheds, retaining walls and sometimes even eaves troughs.


The surest way to confirm if an encroachment agreement is required is to review the up to dateReal PropertyReport with your real estate lawyer. The RPR is a legal document prepared by an Alberta Land Survey or that illustrates property boundaries and improvements (structures) relative to the boundaries and will show if there is anything encroaching on those boundaries.(How do I get a Real Property Report? Click here for a detailed article on RPR’s.)

Dependent on whether the encroachment is on private property or municipally owned lands, your real estate lawyer will then guide you through the appropriate agreement drafting or application process and explain your obligations and potential risks under the agreement.


As with any additional agreements or applications, these processes can take time when required. It is best practice to review the Certificate of Title and current RPR early on in your transaction and send any questions or concerns to your real estate lawyer as soon as possible in order to keep your real estate purchase or sale as smooth as possible.

Contact our real estate lawyers today for assistance with any encroachment agreement related matters.

Robertson LLP’s mission is to deliver high quality legal services with integrity, professionalism and respect for our clients and our community. We will dedicate ourselves to our client’s goals by providing ethically sound legal counsel and strategic advice.

We are committed to delivering efficient and effective legal services, with a focus on communication, responsiveness and attention to detail.

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