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Simon Shields,
LLB

Barrister and Solicitor
(Retired)
LSUC #37308N


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5. Defendant's Claim

(a) Overview

A Defendant's Claim in Small Claims Court is (unsurprisingly) a claim BY a defendant. It is made within the present lawsuit against anyone else, including persons already a party to the lawsuit and those who are not yet parties (called "third parties") [R10.01(1)] .

As they serve the same purpose, the rules governing a Plaintiff's Claim also apply, with necessary modifications, to a Defendant's Claim [R10.05(1)] (see the discussion of Claims, above).

In the Superior Court - Ontario's main trial court (and until recently in Small Claims court) - the terms "Counter-claim", "Cross-claim" and "Third Party claims" are used to describe the three different types of defendant claims. They differ by who the claim is made against. You will want to be familiar with the meaning of these terms in case they are used in court - as they sometimes are (but you will not have to use them in the pleading documents):
  • Counter-claim is a Claim by a Defendant back against the original Plaintiff;

  • Cross-claim is a Claim by a Defendant against a co-Defendant;

  • Third Party Claim is Claim by a Defendant against a party previously unnamed in the action;
A Defendant's Claim made against the Plaintiff (a "counter-claim") may be based on any facts - even ones unrelated to the Plaintiff's Claim [R10.02(1)].

However a Defendant's Claim against anyone else (ie. a "cross-claim" against another defendant, or a "third party claim") must "arise out of the transaction or occurence relied upon by the plaintiff" or be "related to the plaintiff's claim" [R10.01(1)]. If the grounds of a Defendant's Claim against another defendant or a third party are unrelated to the Plaintiff's Claim, then the Defendant should start a new, separate Claim in whatever court is appropriate.
Note: Be careful not to confuse a Defendant's Claim (discussed here) with the use of a "debt set-off"
defence discussed in the section 4(d) above. A debt set-off is an element of a Defence, not a Claim.
A Defendant's Claim will normally be heard in the same trial as the original claim, though the court can order otherwise if "it appears that a defendant's claim may unduly complicate or delay the trial of the action or cause undue prejudice to a party" [R10.04](1)(2).

Where a Defendant's Claim is made against a "third party" (ie. someone not yet a party) and alleges that the third party is responsible for all or part of the damages claimed against the Defendant in the main action, the third party may participate in the trial proceeding to contest the main claim against the Defendant, but only if they have filed a Defence to the Defendant's Claim against them [R10.04(3)].

Sometimes, before or during litigation, parties try to agree amongst themselves to await the outcome of a main action before any cross-claim or third party claims are commenced. Courts dislike such arrangements as they can have the effect of concealing facts, duplicating trials and increasing their caseload - so the Rules allowing such Defendant's claims override such agreements [CJA s.113].

(b) Issuance, Filing and Service of Defendant's Claim

A Defendant's Claim is drafted by the defendant and must be issued by the court. This is done by bringing an original and copies to the court for issuance.

Defendant's Claims may be issued anytime within 20 days after the Defence is filed in the main action (note: this is NOT the 20 days for filing a defence, but 20 days AFTER the Defence is filed). After this time issuing a Defendant's Claim requires permission of the court (obtained on motion: see Ch.11 "Motions and Procedural Changes"). Unless the court expressly orders otherwise under R2.02, no Defendant's Claim may be issued after there has been default judgment or trial in the action[R10.01(2)]. Filing it with the Defence simplifies and expedites the proceedings.

Form 10A: Defendant's Claim

The clerk then issues it like an original Claim by dating, signing, sealing it and giving it the same file number as the original Claim [R10.01(6)]. The original copy will be retained in the court [R10.01(3)], and the defendant must serve the Defendant's Claim on "every person against whom it is made", in the same fashion as an original Claim (See Chapter: "Service") [R10.02].

(c) Contents of Defendant's Claim

A Defendant's Claim should include [R10.01(4)(5)]:
  • The full names of the parties to the defendant's claim and, if relevant, the capacity in which they sue or are sued.

  • The nature of the claim, expressed in concise non-technical language with a reasonable amount of detail, including the date, place and nature of the occurrences on which the claim is based.

  • The amount of the claim and the relief requested.

  • If the defendant is self-represented, their name, address and telephone number, and fax number if any.

  • If the defendant is represented, the representative's name, address and telephone number, fax number if any, and their Law Society registration number if any.

  • The address where the defendant believes each person against whom the claim is made may be served.

  • The court file number assigned to the main action.

  • If the defendant's claim is based in whole or in part on a document, a copy of the document shall be attached to each copy of the claim, unless it is unavailable, in which case the claim shall state the reason why the document is not attached.
(d) Defence to a Defendant's Claim

As they serve essentially the same purpose, the same general principles that apply to serving and filing a Defence to a Plaintiff's Claim (above section 4) also apply to a Defence to a Defendant's Claim [R10.05].

For instance, the Defence should be served, and filed with the court, within 20 days after service of the Defendant's Claim [R10.03]. The same form is used, but should be amended to read "Defence to Defendant's Claim":

Form 9A: Defence

With changes brought about on 01 July 2014 by Reg 44/14, the prior practice - whereby the defendant to a Defendant's Claim would file their Defence with the court and the clerk would serve it on the other parties - was ended. Now such Defences must be served first on the other parties by the defendant to Defendant's Claim, and then filed with the court with proof of service. Both service and filing must be performed within 20 days of the defendant having been served with the Claim [R10.03].

Note that the provisions applying to Defences in Rule 9 (above) regarding Admissions of Liability and Proposals to Repay apply to Defences to Defendant's Claims as well (see above). However normal default judgment rules (as per Ch.9: "Default by Defendant") do not apply against Defendant's Claims. Judgment on Defendant's Claims may only be obtained at trial or on motion [R10.05(2); R11.04].

Lastly, note that when a third party who is not yet named in the litigation is served with a Defendant's Claim, they may want to 'defend' against the main plaintiff's Claim as well. This is allowed for in R10.03.

(e) Where Main Action Dismissed for Delay

Where a defendant has made a defendant's claim within the main action, and the main action has been dismissed under the R11.1.01 provisions [see Ch.11, s.4(g)], then the defendant's claim shall be automatically dismissed by the clerk 60 days after the Order dismissing the main action is served, except where a court orders otherwise during that 60 day period [R11.1.02].

The intent of this rule appears to be to give the defendant 60 days to move before the court to maintain the Defendant's Claim. The requirement that this Order be obtained (and not just initiated by motion) within the 60 day period after dismissal of the main action seems unnecessarily short, and a defendant could still pursue this Order outside of that timeframe if they added a request to vary the Rules under R2.02 "in the interest of justice".


6. Replies

Those familiar with Superior Court procedure will also know of a third available step in the pleadings procedure: the "Reply" [Rules of Civil Procedure R25.08]. A Reply is filed by a plaintiff and should only address new issues and "affirmative defences" raised in the Defence. An example of the use of a Reply in the higher court might be where a Defence has asserted that the plaintiff missed a limitation period (an "affirmative" defence"). A Reply might then assert that the plaintiff only recently learned of the situation giving rise to the damages and that thus the principle of "discoverability" extends the limitation period.

"Replies" are not a formal part of the Small Claims Court procedure. As a matter of practice in Small Claims court, any new fact pleadings and affirmative defences asserted by a defendant in a Defence will be deemed to be denied by the plaintiff unless the plaintiff otherwise advises the court and other other parties - perhaps by simple letter.


7. Amendment of Pleadings and Motions to Dismiss

(a) Overview

It sometimes happens in the course of litigation that a party wants to change or supplement their pleadings. Keep in mind that the purpose of pleadings is to openly state to all parties - and the court - what the material issues are for trial. Therefore it is essential that important changes be embodied formally in the pleadings by amendment - because the other parties have a right to respond to these changes as though they were made originally. Attempts to deny them this right will almost always be prevented by the court.

That said, amended pleadings can be confusing and messy for all concerned - calling sometimes for amendments to Defences and other documents as well (although rule changes effective 01 July 2006 make this unnecessary: R12.01(5)). This point stresses how important it is (whenever possible, sometimes new things do come to light) - to ensure that initial pleadings are thoroughly prepared.

There is also a procedure, less frequently used, to strike out or amend the other side's pleadings - in whole or part - for cause. In extreme cases this can result in the dismissal of a case. This is discussed below.

(b) Amendment of Party's Own Pleading

Thankfully - and if done promptly - the amendment procedure is fairly simple and does not require a motion to the court for permission to amend.

An amended pleading is re-titled "Amended" Claim, Defence, etc., and all additions in the document are indicated by underlining, and any other changes are identified (note "amended" as required in each changed paragraph)[R12.01(1)].

At any time up to 30 days before the originally-scheduled trial date (ie. trial adjournments do NOT extend the time), a party may file and serve an amended pleading as of right [R12.01(3)]. If it is past 30 days before this time then a motion to amend or a clerk's order on consent (see Ch.12, s.11) is required [R12.01]. The Amended pleading must be served on all parties, including those in default - as the amendments could raise new issues that they want to dispute. Service is made by by fax, mail, personal service, an alternative to personal service, or as otherwise ordered by the court (see Ch.6 "Service of Documents"). Service on an added party may be dispensed with by the court if they are added at trial [R12.01(4)], but otherwise is an essential step.
Note Where Claim Issued Electronically
An electronic issuance and filing pilot project was started by the court in 2014. It is explained generally in Ch.6, s.9 'Service and Filing: Electronic Issuance and Filing of Documents'.

Where the Claim was issued electronically, an amended Claim may be filed electronically at any time before the original Claim has been served [R12.01(1.1-1.2)]. However, in some cases re-filing of the amended Claim and proof of service in paper format may still be required [these circumstances are explained in s.3(c) (above)].
(c) Motions to Amend or Strike Pleadings for Cause

A court may, on motion by a party or on its own motion, strike out or amend pleadings (or parts thereof) if it feels that the pleadings [R12.02(1)]:
  • disclose no reasonable cause of action or defence;

  • may delay or make it difficult to have a fair trial; or

  • are inflammatory, a waste of time, a nuisance or an abuse of the court's process.
Grounds for such a motion might include lack of jurisdiction in the court over a part of the remedy sought (see chapter: "Jurisdiction"), or "issue estoppel" (a fact allegation has already been heard and rejected in another case involving the same parties).

Other grounds exist but the essential thing to remember about motions regarding pleadings is that they should not be based on anything that requires the court to make findings of fact on disputed issues. Such motions are NOT a substitute for a proper trial but are instead a method to argue on uncontested evidence and legal principles that all or a part of the written pleadings are just unsupportable.

When pleadings are so flawed that their correction will logically put an opposing party in a position to obtain dismissal, judgment or a stay of proceedings then they may add a motion for this to a motion to amend or strike (see "Motions for Dismissal, Judgment or Stay", immediately below).

When considering such a motion you may - occasionally - be faced with allegations in pleadings that are so absurd that they may be a reflection of mental health problems of the party who filed them. In such a case parties and courts should be (but often are not) sensitive to whether the person is a "person with a disability" and require the assistance of a "litigation guardian" (see chapter: "Parties"). It is a lawyer's ethical duty to bring this possibility to the attention of the court - if it is seriously grounded. Such situations call for great tact and will not likely be met with acceptance by the other side. Similarly, any raising of such concerns had best be well-founded, and not simply a way of defaming your opponent.
Note:
There are now extensive new (01 July 2006) rules governing amendment of pleadings "on consent" (see Ch.11, s.11 "Motions and Procedural Changes: Procedural Changes on Consent").
(d) Motions for Dismissal, Judgment or Stay

Sometimes the problems with the pleadings are so extensive that the other party can argue that the entire pleading (ie. Claim or Defence) is ineffectual. In this case consideration of further logical remedies also arises, namely an order to: dismiss an action (called a "non-suit" motion), grant judgment, or stay proceedings - as the case may be [R12.02(2)] (see these and related topics in Ch.11, s.4 "Pre-trial Disposition of Proceedings").

In these circumstances the court also has jurisdiction to "impose such terms as are just", which is often used to give a party an oppourtunity to amend their pleadings to repair any faults (see "Repair", below). As well, as of 01 July 2014 in motions to strike the court now has additional jurisdiction to stay or dismiss any other motions brought in relation to the case [R12.02(2.1)].

An argument based on lack of jurisdiction will usually result in a "stay" of proceedings order from the court and not a "dismissal" - to avoid barring the matter from being brought in a forum which has proper jurisdiction.

An example of cause for a "stay" of proceedings might be "cause of action estoppel", arguing that the full matter has already been conclusively litigated between the parties in another proceeding. Another example might be complete absence of jurisdiction in the court to grant any of the remedies sought (again, see Ch.3 "Jurisdiction").

Non-suit orders against plaintiffs can be powerful weapons in a lawsuit. Their purpose obviously is to save the court and parties' time in a situation where the questioned pleadings cannot succeed - even if all their alleged facts are proven true. Caution should be exercised in such situations however when dealing with illiterate or inexperienced parties, as judges will want to ensure that they are protected and that their cases are not dismissed merely for lack of ability to assert their case on paper.
Note:
There are now extensive new (01 July 2006) rules governing dismissal of actions "on consent" (see Ch.11, s.11 "Motions and Procedural Changes: Procedural Changes on Consent").
(e) "Repair" When Pleadings Struck or Dismissed

When faced with a motion to amend or strike out a pleading, or for dismissal or judgment, the party against whom the motion is made should consider making a request for "leave" (permission) from the court to file amended pleadings if it looks like the main motion is going to be granted. The court has general jurisdiction in such a situation to "impose such terms as are just" [R12.02(2)].

A party anticipating this should have some plausible suggestions (ideally a proposed amended pleading in hand with copies for all) which avoid the problem identified. Of course such a request should only be made IF plausible fact allegations exist which might "save" the case. Typically a party would advise the court and the other side at some point in the proceedings (proper motion papers would be ideal but not always possible) of their intention to seek such permission, and suggest a fixed time by which to have such amended pleadings issued and served.

If the repair is simple it can be requested directly on the spot. Normally however it will require time to sit down, consider the problems, and re-draft new documents. A specific time limit will likely be set by the court.


8. Pleadings Publically Available

If you are a party to a lawsuit, you will normally be in receipt of all relevant documents filed (unless you are in default - see Ch.9 "Default by Defendant".

However, unless the court has ordered the file sealed (see Ch.14 "Trial"), the documents filed are available for viewing and copying by the public, for a fee. Members of the public are also entitled to view and copy any lists of proceedings and judgments held by the court [CJA s.137].
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