By Pathik Baxi and Amrita Mann
- Buy yourself some time!
In Ontario, a Defendant must serve and file a Statement of Defence within 20 days of being served with a Statement of Claim. By serving and filing a Notice of Intention to Defend, a Defendant can buy itself an additional 10 days to file and serve a Statement of Defence.
- Keep it as brief as possible!
Quite often self represented litigants will assume that they need to include every little detail within their Statement of Defence. The objective of a Statement of Defence is to provide the Court with a concise and clear picture of the fact scenario and the nature of the dispute from the Defendant’s perspective. Typically, that will involve simply reviewing the entire Statement of Claim paragraph by paragraph and stating which paragraphs the Defendant admits, denies and has no knowledge of. Where the Defendant denies certain allegations, the Defendant should briefly state its position with respect to those allegations.
- If an allegation is true, admit it!
A Defendant can often admit a lot of the allegations in a Statement of Claim and still draft a successful defence. The failure to expressly admit an allegation may, and will likely, cause the Plaintiff to assume that the Defendants denies that allegation causing the Plaintiff to gather evidence in support of that allegation. In addition to unnecessarily delaying the proceedings, this may lead to adverse cost consequences against the party who failed to admit the allegation in the first place.
- If you don’t know, say so!
If an allegation in the Statement of Claim is outside the Defendant’s knowledge at the time of preparing the Statement of Defence, plead that the Defendant has no knowledge of that allegation. Remember, once the Defendant has concluded its investigation, the litigation process in Ontario provides the Defendant with various opportunities to amend its position to expressly admit or deny the allegation it previously claimed to have no knowledge of.
- If you need more particulars, ask for them!
If the Defendant requires more particulars in order to properly respond to the allegations raised within the Statement of Claim, the Defendant should consider serving a Demand for Particulars, listing the particulars required from each paragraph of the Statement of Claim. The Plaintiff will then have 7 days to provide a Reply to the Demand for Particulars.
- If you need to see a document referred to in the Statement of Claim, ask for it!
If the Statement of Claim refers to a document which the Defendant does not have in its possession or where the Defendant believes that competing versions of the document exist, the Defendant may serve a Request to Inspect upon the Plaintiff in order to inspect a copy of that document. The Plaintiff will then have 5 days to make the document(s) available for inspection.
- Is there anything the Plaintiff could have done to diminish its damages?
If so, plead that the Plaintiff failed to mitigate its damages. Although this defence is not a full defence such that it will not alleviate liability, the Plaintiff’s failure to mitigate its damages will affect the quantum of damages it will eventually be able to prove at trial.
- Were your actions the direct result of a third party’s conduct?
If so, describe the involvement and actions of the third party within the Statement of Defence and commence a third party action for contribution and indemnity of any amounts that may be awarded against the Defendant in the main claim.
- Think Limitation!
The new basic limitation period (the time during which an action may be commenced in Ontario) is two years from the earlier of the day on which the essential elements (act or omission by a known person resulting in damages to the claimant) of the claim are known to the claimant and the day on which they are discoverable. If the Defendant believes the Claim was commenced after the limitation period, plead the expiry of the Limitation Period.
- Do not include the Evidence!
The objective of the pleadings stage of the litigation is to allow the parties to relay the facts (as they see them) to the Court. The evidence whereby the parties hope to prove those facts does not belong within the pleadings and is to be saved for the discovery and trial stages of the litigation.
Pathik Baxi is a Partner and Amrita Mann is an Associate at
Simmons da Silva LLP
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Disclaimer: This article is only intended for information purposes and is not intended to be construed as legal advice.