If a process server has just handed you a statement of claim, you probably have one urgent question: how long do I have? In most Ontario cases, the answer is 20 days, if you were served in Ontario. Get that date on your calendar before you do anything else, then read on.
A statement of claim begins a lawsuit in the Superior Court of Justice. It sets out what the plaintiff alleges and what they want from you, and those allegations are one-sided at this stage. You will likely read things that seem exaggerated, unfair or simply wrong. They have not been proven, and no judge has looked at them. They do have one thing going for them, though: if you ignore them, the court can treat them as true.
The information here is general, and it is not legal advice. Your response depends on the claim, your documents and your insurance, so it is a good idea to speak with a lawyer early in that 20-day period.
Step One: Pin Down the Date and How You Were Served
Note the date and the manner of service on the first page, along with who delivered it and where. If it was mailed to a lawyer, left with a family member, sent to a business address or delivered through another method, service may have been effected in a way that treats timing differently.
Your time to deliver a statement of defence under the Rules of Civil Procedure is:
- 20 days after service, if you were served in Ontario;
- 40 days, if you were served elsewhere in Canada or in the United States;
- 60 days, if you were served anywhere else.
You may get 10 more days if you deliver a notice of intent to defend, Form 18B, within the original time. That form does not answer the allegations. It simply tells the plaintiff you plan to defend and buys some additional time. It is useful when a lawyer needs time to review documents, or when an insurer is still deciding whether to defend you.
Plaintiffs’ lawyers sometimes grant a further courtesy extension, particularly when a new lawyer has just been retained. Get any extension in writing, with a clear date. A vague “no rush” over the phone offers little protection.
Step Two: Do Not Ignore It, and Do Not Call the Other Side Yet
Silence has a concrete consequence. If your defence is not delivered on time, the plaintiff can require the registrar to note you in default. A defendant noted in default is deemed to admit all the facts alleged in the statement of claim, and cannot deliver a defence or take other steps without the plaintiff’s consent or the court’s permission, except for a motion to set aside the default.
For a claim for a debt or a fixed amount, the plaintiff may then be able to get a default judgment signed without a hearing. A plaintiff with other kinds of claims can bring a motion for judgment. Enforcement can follow, such as garnishment of wages or a writ against your property.
Default can be set aside, and the sooner the better, but getting it set aside takes time and money, and the court’s relief is discretionary. Avoid it wherever possible.
Resist the urge to phone the plaintiff to shout, or to apologize. Anything you say could be used later, and an unguarded text message can become an exhibit. If you need to talk settlement, do it deliberately, with advice about how to protect yourself. Also, tell people around you, such as an office manager or spouse, not to discuss it either.
Step Three: Call Your Insurer Today
This step is easy to overlook and can be enormously valuable. Many insurance policies cover the cost of defending certain lawsuits, and some may pay any resulting judgment. Think about:
- commercial general liability insurance for a business;
- home or tenant insurance, which sometimes responds to negligence claims;
- auto insurance for a collision;
- professional liability or errors and omissions insurance;
- directors’ and officers’ coverage;
- a credit card or other product that happens to include a relevant benefit.
Policies usually require prompt notice of a claim, and late notice can complicate coverage. So send the insurer or broker a copy of the claim right away, and keep proof that you did. Do not admit fault or make payments on your own, since policies often limit a policyholder’s ability to do this. If the insurer appoints a lawyer, you will want to know whether that lawyer’s role is limited, and you may want separate advice about anything not covered.
Step Four: Preserve Your Evidence
From the moment you are sued, if not earlier, you must keep potentially relevant documents. In the Superior Court, parties generally have to disclose relevant documents in an affidavit of documents, and that can include things that hurt your case. Deleting messages or tidying up records can do far more damage than the messages themselves.
Stop any automatic deletion on phones and email accounts where it might affect relevant material. Back up WhatsApp, Instagram and text threads. Save security camera footage before it is overwritten. Keep accounting records, contracts, invoices, photos and the original emails with their attachments. Do not post about the dispute on social media, and do not remove older posts without advice.
While it is fresh, write a private timeline of what you remember, and label it as prepared for your lawyer. Include names, dates, and what you can and cannot confirm.
Step Five: Read the Claim for What It Really Says
The first page or two usually contain a list of what the plaintiff is asking for. It might include damages, interest, costs and perhaps an order such as an injunction. The numbered paragraphs that follow lay out the alleged facts. As you read, try to answer:
- Who is suing whom? Are you named personally, or is it your corporation? Is it both? Are you being sued for something done by an employee?
- What is the legal basis? Breach of contract, negligence, misrepresentation, unpaid debt or something else?
- Does an old date stand out? A two-year limitation period usually applies, and a claim that seems stale should be flagged early.
- Why this court location? A claim is generally started in a county with a rational connection to the dispute, based on factors such as where the events took place, where the parties are, and where the evidence is located. A claim issued in Peel about events in Ottawa may be open to a transfer motion, though you would need to consider whether that is worth pursuing.
- Is it in the right court? A claim worth $50,000 or less usually belongs in Small Claims Court, and leave is generally required to start such a claim in the Superior Court. Simplified procedure applies to many money and property claims of $200,000 or less, and it limits some steps, such as the type of discovery available.
Bring your annotated copy to your first meeting with a lawyer. It speeds things up considerably.
Step Six: Decide on the Response
A defence is one possibility among several, and a lawyer can help you think through which one suits your position.
A statement of defence. This responds to each allegation. In Ontario, you must admit the facts you do not dispute and deny the others, and you must also set out your own version of events. If you want to rely on a particular point, such as a limitation period or an agreement that limits liability, you should plead it.
A counterclaim. If the plaintiff owes you something connected to the dispute, you may be able to claim it in the same lawsuit. Limitation periods apply to your claim too.
A crossclaim or third party claim. If a co-defendant or an outside party is really responsible, you may be able to bring them in. For example, a hypothetical general contractor might bring in a subcontractor whose work failed.
A motion to strike or dismiss. A legally defective claim, or one brought in the wrong forum, might be challenged before or instead of defending on the facts. Rule 21 and Rule 25.11 are often discussed in this context, and a Rule 20 summary judgment motion may become available once a defence has been delivered.
A negotiated exit. Sometimes the sensible move is a quick settlement, particularly if the claim is sound and costs would grow if you fought it. A claim for money only can even be ended by paying the claim and the costs claimed within the time to defend, under Rule 14.10, though you should get advice before going down that road.
Delivering a defence generally means serving it on the plaintiff’s lawyer and filing it with proof of service. In Brampton, the Superior Court of Justice operates from 7755 Hurontario Street, and its filing arrangements can include electronic options. Your lawyer can confirm what is currently available.
You May Need a Lawyer Whether You Like It or Not
An individual can represent themselves in the Superior Court, though many find it hard to do so. A corporation generally cannot: Rule 15.01 requires a corporation to be represented by a lawyer unless the court grants leave. That rule catches many small-business owners by surprise. If your company is named, do not plan on having the owner sign and file the defence without first getting permission from the court.
If your budget is tight, ask a lawyer about the scope of work and fee structure, and whether limited-scope help may be possible for certain steps. You can use the Law Society of Ontario’s referral service to find a lawyer or paralegal, though a paralegal’s scope is limited and generally does not include Superior Court lawsuits of this kind.
What Happens After the Defence
Once pleadings close, the lawsuit moves into disclosure. Each side prepares an affidavit of documents, then participates in discovery, where the parties can be questioned under oath, depending on the track of the case. Mandatory mediation under Rule 24.1 applies in Toronto, Ottawa and Essex County, not in Peel, but parties in Brampton can still agree to mediate, and many cases benefit from it. Pre-trial conferences come later if the matter has not settled.
The rules have also been under review as part of an ongoing reform of civil procedure. The steps described here reflect the rules as they stand, so have a lawyer confirm what applies to your case when you deal with it.
A One-Page Plan for the First Week
If you do nothing else, work from this short list:
- Write down the date, time and method of service, and calculate your deadline.
- Send the claim to your insurer or broker, and ask for written confirmation of what they will cover.
- Save everything, and stop any deletion that might affect relevant records.
- Avoid contacting the plaintiff until you have had advice.
- Book a consultation, and bring the claim, any contract and your timeline.
- Decide on a notice of intent to defend, a defence, or another response, and leave time for it to be prepared.
The firm’s civil litigation page outlines the kinds of matters we deal with, and if your dispute arises from a business relationship, the business litigation page may also be helpful. To speak with Sawan Law House LLP, contact the office and mention your deadline when you do. A lawsuit can feel overwhelming on the day it arrives, but it becomes far more manageable once you are working to a calendar and a plan.