Updated June 2012
This How-To Brief outlines the steps to take when preparing a statement of defence.
1Gather what you will need
- The statement of claim and notice of action, if any
- Notes from client interviews
- Copies of any relevant documents in the client's possession and control, including contracts, correspondence, waivers, receipts, invoices, and any other documents
- Rules of Civil Procedure
- Applicable practice directions
- Rules of Civil Procedure Forms:
- Form 4A, General Heading of Documents – Actions
- Form 4C, Backsheet
- Form 16B, Affidavit of Service
- Form 18A, Statement of Defence
- Form 18B, Notice of Intent to Defend
- Form 27A, Counterclaim (Against Parties to Main Action Only)
- Form 27B, Counterclaim (Against Plaintiff and Person not Already Party to Main Action)
- Form 28A, Crossclaim
- Form 29A, Third Party Claim
- Form 30C, Request to Inspect Documents
- (See the link to the Rules of Civil Procedure Forms in the Resources section of this How-To Brief.)
- Courts of Justice Act
- Firm precedents, if any, and library resources for precedent material
2 Diarize the date for delivery of the statement of defence
- Conduct a conflicts search using the legal name(s) of all parties to rule out a conflict of interest.
- 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 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)).
- Consider delivering a notice of intent to defend (Form 18B), which will extend the deadline for serving a statement of defence by 10 days provided the notice of intent to defend is delivered within the time prescribed for delivery of the statement of defence (r. 18.02).
3Interview the client
- Discuss the allegations contained in the statement of claim with the client. Obtain the client's version of the events, including relevant dates, locations, parties and other documents. Take detailed notes.
- Review and make copies of any relevant documents (paper as well as electronic documents) in the client's possession and control, including contracts, written correspondence, emails, waivers, receipts, invoices and other documents.
- Advise the client of the client's obligation to preserve all 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 summarizing the discussion at the client interview. Identify next steps to be taken, itemizing those tasks to be taken by the client, and include a due date.
- Diarize the due date.
4Analyze the case
- Create a theory of the case based on the information obtained from the client. Identify possible defences to the allegations contained in the statement of claim.
- Review the statement of claim and consider whether a demand for particulars is required. If so, prepare and serve a demand for particulars. If the plaintiff(s) fail(s) to supply particulars within seven days of service of the demand for particulars, you may bring a motion for particulars (r. 25.10).
- If the statement of claim refers to specific documents, consider whether these documents should be obtained pursuant to a request to inspect documents (Form 30C and r. 30.04(2)).
- Determine whether there is a basis for a counterclaim against the plaintiff or any person not already a party to the main action (R. 27).
- Determine whether there is a basis for any crossclaims against any named co-defendants (R. 28).
- Consider whether there is a basis for any third party claim(s) (R. 29).
- Conduct legal research as necessary to explore possible defences and causes of action that might be used in a counterclaim, crossclaim and/or third party claim. Prepare legal research memoranda so that legal research is readily available for updating and for later use in the proceeding.
- Prepare an event chronology in point form, including references to key documents.
- Prepare a key documents brief that can be updated as the case progresses.
- Determine the legal names of any parties being added to the proceeding through a counterclaim. Conduct legal name searches as necessary. Retain results of the legal name searches in the client file.
- Obtain addresses for personal service on any parties being added as defendants to the counterclaim or third party claim, and determine if these defendants must be served outside Ontario, North America or elsewhere.
- If the claim has been brought under R. 76 determine, in consultation with the client, whether any objection will be taken to the action proceeding under r. 76.02(5). (See Step 5 below.)
- Consider whether your client may be required to pay security for costs as a result of commencing a counterclaim or third party claim (r. 56.01).
5Prepare a draft statement of defence
- 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 18A for the statement of defence. If a crossclaim or counterclaim is being combined with the statement of defence, use Form 28A, 27A or 27B. If a third party claim is being commenced, use Form 29A.
- Set out the following in consecutively numbered paragraphs (rr. 25.02 and 25.07):
- each allegation contained in a paragraph of the statement of claim that the defendant admits
- each allegation contained in a paragraph of the statement of claim that the defendant denies
- each allegation contained in a paragraph of the statement of claim of which the defendant has no knowledge
- In remaining consecutively numbered paragraphs, set out any material facts relied upon as a basis for the defence, but not the evidence by which those facts are to be proved, using clear, unambiguous language (rr. 25.06(1) and 25.07(4)).
- Where a crossclaim or counterclaim is being combined with the statement of defence, include a separate heading for the crossclaim or counterclaim after the defence portion of the pleading. Set out key allegations of the crossclaim or counterclaim in consecutively numbered paragraphs (rr. 27.02 and 28.02, respectively).
- Consider using headings and sub-headings, particularly in longer documents. A table of contents may be appropriate in an extremely long and complex statement of defence. Use defined terms where necessary.
- Where an objection is being made to proceeding under R. 76, include a statement to this effect in the statement of defence (r. 76.02(5)).
- Include the date, the name of the lawyer who has carriage of the file and the firm address, telephone and fax numbers.
- Prepare a backsheet (Form 4C) in accordance with r. 4.02(3).
- Where a counterclaim is being included against a defendant who is not already a party to the action and who is being served outside Ontario, see r. 17.02 for the requirements for such service without leave of the court.
6Review and finalize the draft statement of defence
- Have the client review the statement of defence 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 defence.
7Deliver the statement of defence
- The term "deliver" in reference to a document means the service and filing of a document with proof of service (r. 1.03(1)).
- Have the statement of defence served on the lawyer for each party to the action (rr. 16.01(4)(a) and 16.05).
- Obtain proof of service of the statement of defence for the file in the form of an affidavit of service (Form 16B) (r. 16.09(1)).
- File the statement of defence with proof of service in the court in which the proceeding was commenced. Retain copies of the statement of defence and proof of service in the file and provide copies of same to the client for his or her file and information.
- Add a copy of the statement of defence to the pleadings brief.
- 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).
8Issue and file the counterclaim against the non-party(ies) or the third party claim (if any)
- A counterclaim against a non-party(ies) or a third party claim is an "originating process" (Rule1.03) and must be issued by the court in accordance with R. 14. (See rr. 27.03 and 29.02(1), respectively.)
- Note that a third party claim must be issued within 10 days of delivery of a statement of defence, or at any time before the defendant is noted in default (whichever is earlier), or within 10 days of delivery of a reply in the main action by the plaintiff, failing which consent of the plaintiff or leave of the court is required (r. 29.02).
- Take a minimum of four copies of the counterclaim or third party claim to the Registrar's desk at the court office where the proceeding was commenced.
- Complete and submit Form 14F (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 counterclaim or third party claim has been issued. The Registrar will date, sign and seal the counterclaim or third party 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 counterclaim or third party claim has been issued, file a copy with the court.
- Retain a copy of the pleading for the file, a copy for the client and the appropriate number of copies for service on the opposing party(ies).
9Serve the counterclaim against the non-party(ies) or the third party claim (if any) on the defendant(s)
- A counterclaim against a non-party(ies) or a third party claim is an "originating process" (r. 1.03) and must be served personally or by an alternative to personal service. (See rr.16.02 and 16.03 for methods of service.)
- A counterclaim against a non-party(ies) or a third party claim must be served within 30 days after being issued. In addition, serve all pleadings previously delivered in the main action or in any counterclaim, crossclaim or third or subsequent party claim in the main action. (rr. 27.04(2) and 29.02(2)).
- Obtain proof of service in the form of an affidavit of service (Form 16B) (r. 16.09(1)).
- Sample statement of defence, counterclaim and crossclaim
- Darryl Singer, "Preparation of Pleadings" in Fourth Annual Civil Litigation for Law Clerks (Toronto: Law Society of Upper Canada, Continuing Legal Education, 2004). Order this publication through the AccessCLE website or review it at your local law library (see AdvoCAT Great Library Catalogue).
- Annotated Pleadings for a Personal Injury Action (Toronto: Continuing Legal Education, Law Society of Upper Canada, 2003). Order this publication through the AccessCLE website or review it at your local law library (see AdvoCAT Great Library Catalogue).
- William M. Rose, Pleadings: A Guide to Legal Drafting Under the Civil Procedure Rules (United Kingdom: Oxford University Press, 2002)
Statutes and Rules