Making a Charter Claim
Charter cases are determined in the courtroom via regular court proceedings. The procedure for launching a Charter case in court is outlined below. In addition, sometimes Charter arguments can be made before administrative tribunals. This procedure is also outlined below.
For explanations of the legal terms used in this section, please check out our glossary of terms (here).
A. The Charter in the Civil Courtroom
Charter issues arise in civil actions (i.e. a lawsuit where one party sues another) or in criminal proceedings (i.e. where someone is charged with a crime). This site focuses on civil actions.
Where should I start?
The Province of Alberta has two civil courts in which you can proceed:
The Alberta Court of Justice (aka Small Claims Court) -- A more user-friendly court designed to settle disputes where $100,000 or less is at stake.
Alberta Court of King’s Bench -- The superior Alberta Court with inherent jurisdiction to settle the full range of legal disputes.
Most civil Charter cases are brought before the Alberta Court of King's Bench, because it has unlimited jurisdiction (meaning, it can hear anything and grant the full range of Charter remedies). While Small Claims Court is easier to navigate, it has limited jurisdiction (meaning, it is restricted in what it can hear and do for you). For example, Small Claims Court cannot declare that a law is invalid (Alberta v. B. ( K.), 2000 ABQB 976 at paras 29 to 37), and it can only hear certain types of claims that do not exceed $100,000 (see, Court of Justice Act, RSA 2000, c C-30.5). You would only proceed in Small Claims Court if you fit within these boundaries.
Since most civil Charter cases arise in the Alberta Court of King’s Bench, this site focuses on the King's Bench procedure. If you would like to explore proceeding through Small Claims Court, the Alberta Courts website provides a detailed step-by-step guide for taking a claim through this system (located here).
How do I start?
The Court of King's Bench follows a complex set of rules known as the Alberta Rules of Court (the "Rules", located here). To start a civil claim, the Rules state that you must complete, file and serve a commencing document (Rule 3.2). A commencing document sets out what your claim is, your basis for suing, and the remedy you want. The Rules have two types of commencing documents:
Originating Application: Generally, originating applications are used if 1) there are no facts in dispute; 2) the case deals with judicial review (more information here), or a statute provides for the matter to be brought by originating application (see Rules 3.2 and 3.8) (form located here).
While originating applications are relatively uncommon, they are more prevalent in Charter cases because (for example) there is often no factual dispute when challenging the validity of a law, and many Charter challenges are applications for judicial review (discussed here).
Statement of Claim: A Statement of Claim is used in all other cases (Rule 3.2 and 3.25) (form located here). Statements of Claim are very common, and are the ordinary procedure for starting a civil court action.
Once filled out, your commencing document must be filed at your judicial centre (i.e. the Court where you want the action to proceed). The filed document must then be served. “Service” is the formal process of giving legal documents to the parties you have named in your case. There are specific approved methods for service are set out in Rule 11 of the Rules of Court (found here.) The Rules for service are very particular, and must be followed exactly.
In Charter cases, you have to serve additional parties. In addition to the defendants named in your action, you must serve the Attorney General of Canada, the Alberta Minister of Justice and the Solicitor General of Alberta (Judicature Act, RSA 2000, c J-2, s. 24). More information on serving these parties is discussed here.
Your next steps depend on which commencing document you are using.
Click here for ACLRC's list of additional resources to help you navigate the civil court system.
B. The Charter in Administrative Tribunals
A small number of Alberta administrative boards and tribunals are permitted to hear Charter challenges. These administrative tribunals are listed in the Designation of Constitutional Decision Makers Regulation. If you are before an administrative tribunal that cannot hear Charter cases, you will have to bring an originating application for judicial review to the Court of King's Bench.
More information on administrative tribunals and judicial review are located here.