Updated June 2012
This How-To Brief outlines the steps to take when commencing an action.
1Gather what you will need
- Notes from client interviews
- Copies of relevant documents from the client, including contracts, correspondence, receipts, invoices and any other proof of loss
- Rules of Civil Procedure
- Applicable practice directions
- Rules of Civil Procedure Forms:
- Form 4A, General Heading of Documents – Actions
- Form 4C, Backsheet
- Form 14A, Statement of Claim (General)
- Form 14B, Statement of Claim (Mortgage Action – Foreclosure)
- Form 14C, Notice of Action
- Form 14D, Statement of Claim (Action Commenced by Notice of Action)
- Form 14F, Information for Court Use
- Form 16B, Affidavit of Service
- (See the link to the Rules of Civil Procedure Forms in the Resources section of this How-To Brief.)
- Rules of the Small Claims Court
- Rules of the Small Claims Court Forms
- Courts of Justice Act
- Limitations Act, 2002
- Firm precedents, if any, and library resources for precedent material
2 Interview the client
- Conduct a conflicts search using the legal names of all the parties to rule out a conflict of interest.
- Obtain the client's version of the events, including relevant dates, locations, parties and other information. Take detailed notes.
- Discuss various remedies with the client, such as damages, a declaration, restitution and any other remedies you think are relevant.
- Review and make copies of any relevant documents (paper as well as electronic documents) in the client's possession and control, including contracts, receipts, written correspondence, emails, invoices and any other proof of loss.
- Advise the client of the client's obligation to preserve any original, relevant documents in the client's power, possession or control, including electronic documents.
- Immediately following the meeting, prepare a memorandum to file summarizing the information obtained from the client noting, among other things, the next steps to be taken on the file.
- Prepare a letter to the client including relevant retainer language and summarize the discussion at the client interview. Identify the next steps to be taken, itemizing the tasks to be completed by the client, and include a due date.
- Diarize the due date.
3Analyze the case
- Conduct legal research, as necessary, to explore possible causes of action. Prepare a legal research memorandum so that legal research is readily available for updating and later use in the action.
- Prepare an event chronology in point form to ensure that the facts demonstrate the required elements of the cause of action. Include references to key documents. Prepare a key documents brief, which can be updated as the case progresses.
- Determine whether any applicable limitation periods have expired or if any notices are required. See the Limitations Act, 2002.
- Note that the old Limitations Act will apply if the client's claim arose before January 1, 2004. Also note that specific limitation periods in other statutes may apply depending on the nature of the client's claim. (As a guide, see the link to a comparison of limitation and notice periods under new and old limitations legislation in the Resources section of this How-To Brief.)
- Where time is of the essence, prepare and issue a notice of action (Form 14C). Note that if a notice of action is used, the statement of claim in Form 14D must be filed within 30 days of the notice of action being issued (r. 14.03).
- Determine the legal names of all parties, conducting legal name searches as necessary (e.g., corporate searches, partnership searches and other relevant legal name searches). Retain results of searches in the client file.
- Obtain addresses for personal service on the defendant(s). Identify any defendants that must be served outside Ontario, North America or elsewhere (R. 17).
- If the claim is for damages, determine if the action falls within the monetary jurisdiction of R. 76 of the Rules of Civil Procedure or the Small Claims Court under s. 23 of the Courts of Justice Act.
- If the claim is commenced in the Small Claims Court, note that the proceeding will be governed by the Rules of the Small Claims Court. (See the link to the Rules of the Small Claims Court and Rules of the Small Claims Court Forms under the Resources section of this How-To Brief.)
- In consultation with the client, determine where the proceeding will be commenced.
- Determine whether the client may be required to pay security for costs under r. 56.01. Advise the client accordingly.
4Prepare a draft statement of claim
- Consult firm precedents and library resources for precedent material that will assist in the drafting process.
- Prepare the general heading (Form 4A). Include the applicable court name and the title of proceedings, setting out the full names of the parties and the capacity in which they have been named as parties (rr. 4.02(1) and 14.06).
- Use Form 14A for the statement of claim unless the action relates to foreclosure of a mortgage (Form 14B) or unless the action was commenced by notice of action (Form 14D).
- Set out the following in consecutively numbered paragraphs (rr. 25.02 and 25.06(9)):
- the precise nature and amount of relief sought, including the specific amount and heads of damages, and any claims for pre- or post-judgment interest and costs
- the names of the parties, their capacities, their business and residence and the circumstances leading up to the dispute
- a concise statement of facts material to the cause of action
- the place of trial proposed by the plaintiff
- The statement of claim should set out the facts, but not the evidence, by which the facts will be proven. Use clear, unambiguous language (r. 25.06(1)).
- Wherever possible, each allegation should be contained in a separate paragraph (r. 25.02).
- Consider using headings and sub-headings, particularly in longer statements of claim. A table of contents may be appropriate in an extremely long and complex statement of claim. Use defined terms where necessary.
- If the action is being brought under R. 76, the statement of claim or notice of action must indicate that the action is being brought under the simplified procedure (r. 76.02(4)).
- Include the date, the name of the lawyer who has carriage of the file, the firm address and telephone and fax numbers, and the address of the court office in which the statement of claim will be issued.
- Prepare a backsheet (Form 4C) in accordance with r. 4.02(3).
- Where a defendant is being served outside Ontario, refer to r. 17.02 for the requirements for such service without leave of the court.
- Consider whether a trial by jury is desirable and, if so, consider whether the relief sought in the claim precludes a trial by jury under s. 108 of the Courts of Justice Act. (See Step 7.)
5 Review and finalize the draft statement of claim
- Have the client review the statement of claim for errors, omissions and inaccuracies. Ensure that all material facts have been included.
- Make any necessary revisions and have another lawyer, a student-at-law, a law clerk or your assistant proofread the statement of claim.
6Issue and file the statement of claim
- Take a minimum of four copies of the statement of claim to the Registrar's desk at the court office where the proceeding is being commenced.
- Complete and submit Form 14 F (Information for Court Use).
- Submit the applicable fee in the form of cash or a bank draft or certified cheque made payable to the Minister of Finance.
- Check with your law clerk, process server or courthouse staff regularly to determine if the statement of claim has been issued. The Registrar will date, sign and seal the statement of claim with the court seal. The claim will be assigned a court file number that must appear on all subsequent documents in the proceeding.
- Once the statement of claim has been issued, file a copy with the court.
- Retain a copy of the claim for the file, a copy for the client and the appropriate number of copies for service on the opposing party(ies).
- Prepare a pleadings brief that will be updated as the case moves forward.
7Serve the statement of claim on the defendant(s)
- The statement of claim must be served personally on the defendant(s), or by an alternative to personal service (rr. 25.03, 16.02 and 16.03).
- Where an action has been commenced by a statement of claim, the statement of claim must be served within six months after being issued (r. 14.08(1)).
- Where an action has been commenced by a notice of action, the notice of action and statement of claim must be served together within six months after the notice of action has been issued (r. 14.08(2)).
- Obtain proof of service in the form of an affidavit of service in Form 16B (r. 16.09(1)).
- If the client elects a trial by jury, prepare and serve a jury notice (Form 47A) prior to the close of pleadings (r. 47.01).
8Diarize the date by which the statement of defence must be delivered
- Where the defendant is served in Ontario, the defendant must deliver a statement of defence within 20 days of being served with the statement of claim (r. 18.01(a)). The term "deliver" in reference to a document means the service and filing of a document with proof of service (r. 1.03(1)).
- The defendant has an additional 20 to 40 days to deliver a statement of defence where the defendant has been served outside Ontario, North America or elsewhere (rr. 18.01(b)–(c)).
- If a notice of intent to defend is delivered, the defendant has an additional 10 days in which to deliver a statement of defence (r. 18.02).
- Diarize the applicable date so that you are in a position to note the defendant in default if no defence has been delivered within the required time period (r. 19.01(1)).
- If a defence is received, consider whether a reply is necessary (r. 25.08).
Statutes and Rules
- Courts of Justice Act, R.S.O. 1990, c. C.43
- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, made under the Courts of Justice Act
- Rules of Civil Procedure Forms
- Rules of the Small Claims Court, O. Reg. 258/98, made under the Courts of Justice Act
- Rules of the Small Claims Court Forms
- Limitations Act, 2002, S.O. 2002, c. 24, Sch. B
- Limitations Act, R.S.O. 1990, c. L.15