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Welcome everyone this is Amer Mushtaq, from You Counsel. Today we’ll talk about the last step in a pleading, which is called a reply in a civil action in the Superior Court of Justice in Ontario. And as we have said in the previous lectures the concepts that we’re sharing with respect to the pleadings meaning the claim, the defense, the reply are very, very basic this is very broad overview of pleadings so you can understand the fundamental concepts. The pleadings when you’re drafting them could become very complex based on your legal issues and factual issues, but all of these lectures are really to give you a broader understanding of what these pleadings are about. And as I mentioned earlier we have lectures on starting a Civil Action in Ontario, some of the basic steps, how do you draft a claim, how do you draft a defense, and now we’re going to talk about how do you draft a reply and what is it that you need to keep in mind.

And we’ll begin with a disclaimer that this course is not legal advice, so if you have any specific questions you must contact a legal professional.

The example that we have used with respect to drafting of the claim and the defense was a very basic one. We took the example that Mary had loaned $100,000 to John. John had refused to pay money back and Mary went to Superior Court of Justice and commenced the court action. So we’ve gone through that process in previous lectures, and in the last lecture we had gone through the process where John had delivered, John had served and filed his Statement of Defense. And again for the purposes of Reply the key legislation you want to keep in mind is the Courts of Justice Act and the Rules of Civil Procedure, they’re both available online and you can Google them and read the relevant rules with respect to Reply.

So what is a Reply? A Reply is a reply to the Statement of Defense. You are replying to certain facts that were stated in the Statement of Defense and so essentially a reply is made by the plaintiff. And once a Reply is made that’s the end of it, and then the defense does not get another shot at replying to the Reply. And if there are things that the defense needs to change in their Statement of Defense then they can do so by amending their Statement of Defense. So there is an opportunity to amend your pleadings whether it’s the Statement of Claim, Statement of Defense, Reply, Counterclaim, or anything else and there are different rules that govern how those amendments are made, but the Reply is really the last step in the pleadings.

We’ll talk about timeline which is always important, we’ll talk about when a reply is needed and we’ll talk whether a reply is must or whether it’s optional and so we’ll discuss those points.

Let’s begin with the timeline which is crucial and will refer to Rule 25.04 Sub 3, let’s see if we can go to that rule, and it talks about the timing of the Reply, so 25.04 Sub 3 is here: “A Reply, if any shall be delivered within 10 days after service of the Statement of Defense, except where the defendant counterclaims, in which case a reply in defense to counterclaim if any shall be delivered within 20 days after service of the Statement of Defense and counterclaim.” So, in simple words, if you receive the Statement of Defense you literally have 10 days to prepare, serve, and file your Reply, and if you have received the counterclaim in addition to the defense then you have 20 days to do so. So 10 days for simple defense and 20 days when the defense also has a counterclaim.

Now when is Reply necessary? Rule 25.08 Sub 1 talks about when a reply is necessary. Let’s scroll down and see exactly what that rule says. Okay, where a Reply is necessary and 25.08 Sub 1, says “a party who intends to prove a version of facts different from that pleaded in the opposite party’s defense shall deliver a reply setting out the different version, unless it has already been pleaded in the claim.” So one of the key things to keep in mind that the defense has stated certain facts and now you want to quote or you want to state a different version of those facts then you can serve a Reply. But it’s important to know that if you have already dealt with those facts in your Statement of Claim, and then defense has just given a different version then you do not go back and then state another version of those facts or repeat the version. This is not an opportunity to repeat or deal with the facts that you have already dealt with. This is dealing with the facts that are newer and you want to say a different story.

We want to keep in mind the language “shall deliver reply”, which is in the rule, right. The rule says that you rely on these facts defense shall deliver, so the word “shall” means that you must. When you read the rules, the rules use the language of “shall” or “may.” So “may” when the word “may” is use it’s optional. When the word “shall” is used that’s mandatory. So you have to, if you want to rely on a different version of facts than what defense has said, you “shall” deliver a reply, you must deliver a reply and then use those facts.

Okay, another example when the reply is necessary Rule 25.08 Sub 2; let’s see what does that rule say. “The party who intends to reply in response to a defense on any matter that might, if not specifically pleaded, take the opposite party by surprise or raise an issue that has not been raised by previous pleading shall deliver a reply setting out the matter subject to sub rule so and so.” So what is this rule mean? That if you have now new facts, so the defense stated certain facts and then that gave rise to new facts, and if you don’t put them in reply and when your at trial and you bring those facts at trial, that will be surprising to the other side, then you “shall” – you must – bring those facts in your reply. And the second component that you want to understand is that if there are new issues because of what the defense has said in their defense, then you must bring a reply. So what is it that you want to understand broadly with respect to the pleadings? I had said in the first lecture that pleadings is really your story, this is your story where you’re telling the court why you need certain remedies that you’re asking. And the story has to be complete, whatever you have stated in the pleading, that’s all you’re relying on. So if there are facts that are not in the pleading and you want to rely on those facts you won’t be able to unless you have put them in your pleadings. So that’s why the opportunity to tell the complete story is in the pleadings, and for some reason if you were not able to tell the entire story or you realize facts later on you do have an opportunity to amend your pleadings, there is a mechanism to do that all the way up to trial and there are different rules for that and we’ll cover those later. But what you want to understand is that the concept of these pleadings is that nobody is surprised by the facts that the other side is alleging, there are no surprises. Each side, either you’re a plaintiff or the defendant, must know exactly what facts the other side is relying on, so that you can properly plead your case, so that’s the idea.

Okay and again remember the language of “shall deliver” so it’s mandatory. You must, if you are relying on new facts or you are dealing with new issues that are not already dealt with in your pleadings in your claim, then you shall, you must deliver a Reply.

Rule 25.08 Sub 3, “a party shall not deliver a Reply except where required to do so by sub rule (1) or (2).” So what is this rule saying? That look you just cannot come back and then put anything in the Reply just because you feel like you want to respond to the Statement of Defense no you cannot. So there are only two specific scenarios, which are in 25.08 Sub 1 and Sub 2, those are the only two scenarios where you are allowed to file a Reply or serve a Reply, and you must serve and file a Reply. But outside of that, you must not serve a Reply, so that’s important to keep in mind.

So what happens if you do not serve a Reply, and in many, many, many cases there is no reply, and Rule 25.08 Sub 4 deals with that and let’s look at that: “A party who does not deliver a reply within the prescribed time shall be deemed to deny the allegations of facts made in the defense of the opposite party.” So this is this is an important point to know, when you don’t serve a reply then that’s an automatic denial from your side that whatever is being said in the Statement of Defense you don’t agree with, so it’s a deemed denial, you don’t need to serve a Reply to say I don’t agree with the Statement of Defense and that’s why the specific rule is there, to make sure that you serve a Reply when it’s necessary and you don’t serve a Reply when it’s not necessary, and get the benefit of not serving a Reply as a deemed denial.

What are the steps to file a Reply? Obviously the first step is download the form, we have shown in previous lectures how do you download it, it’s available online. You draft a reply, you write your story down, you serve it on the defendant, you prepare your Affidavit of Service, print two copies and then file it in a court office and there’s no fee for filing a Reply.

Again a Reply is an important document as I said, it’s part of your pleadings, your entire story has to be covered in Reply. So its purpose is that you respond to the Statement of Defense and any new facts or any new issues that you want to deal with you do that, and the Reply completes your story.

Now the Rules of Pleadings, drafting of pleadings is the same for Claim, for Defense, and for Reply and we have covered those I’ll briefly go over these. You plead facts not evidence, your statements should be concise, you only plead facts that are relevant, you only plead facts that are material, and each allegation should be in a separate paragraph and those paragraphs must be consecutively numbered.

Now there’s one important part that I want you to remember and you I want to be very clear about it. Remember I said that 25.08 Sub 4 says that if you do not file a Reply it’s a deemed denial of the Statement of Defense; it is assumed that you are not agreeing to whatever statement is stated in the Statement of Defense. But when you do file a Reply then that deemed denial is gone. So what you must do is that if there are facts in the Statement of Defense that you don’t agree with you must state so in your Reply. And my common practice is that I start off my Reply by stating that the plaintiffs denies each and every allegation raised in the Statement of Defense, just to cover myself off, because I don’t want to miss out on a specific fact and I have not dealt with that fact in a Reply and then I expose myself to a sort of an agreement of that fact in the Statement of Defense. So I think it’s important to know that the deemed denial applies only when you have not served a Reply. When you’re serving your Reply then you want to deal with every single fact in the Statement of Defense even though you are raising your new facts or you’re providing a different version, you must say that “I disagree with paragraphs 1 to 27 or 1 to 5” or whatever paragraphs, but you must make sure that you have that, so keep that point in mind.

Okay so we’ve covered the concept of Reply, let me take you to the example that we’ve been using so that we can apply what we have learned a bit, and let’s start by looking at the Statement of Claim so that you can get a sense of when the Reply is needed and what are we doing in this case. So if you go through the Statement of Claim in the claim portion in the claim video that we have gone through you will notice that in that claim Mary had simply stated that John had, they’re childhood friends, John had borrowed money $100,000 he had promised that would return and then he has not returned it so he is liable for $1000,000. But when you read the defense you will notice that John has now raised some new facts that Mary had not dealt with in her Statement of Claim. So for instance he says that not only that Mary and he are friends but their parents were also, their fathers were also childhood friends, so Kozner and Smith’s fathers were also childhood friends, that’s an interesting fact. And then John goes on to say that 20 years ago his father had helped Mary’s father when he was going through financial difficulties and when John was going through financial difficulties in the near past then Mary agreed to help him out and this was the reason why this money was given as a gift. And everything was going smoothly until the families had a real breakdown in their relationship and it started off with some children fighting over hockey games and stuff like that. So essentially what you see is in John’s Statement of Defense he has now quoted new facts, which were not covered by Mary in her Statement of Claim, and then it’s important for Mary to deal with those. Is John telling the truth, is he correct in saying that their parents, their fathers, were childhood friends, is he correct in saying that John’s father had actually helped out Mary’s father 20 years ago? So all of these facts are important because when a judge is ruling, the judge is going to determine ‘A’ whether those facts are correct or not, and then decide whether this payment of $100,000 was indeed a loan or was it a gift? And so Mary in her Reply will be or “shall” if she wants to portray a version of facts different than what John is stating must serve her Reply and then tell her side of the story, and her story could be, you know, could have more factual information that is not covered in John’s Statement of Defense. So that’s a scenario where a reply must be served because you are dealing with as a plaintiff new facts, which were not covered in your Statement of Claim.

Okay, so we’ve covered some of the rules you can always look at Rules of Civil Procedure, Rule 25 to 29 deals with pleadings, Rule 26 deals with amendments and we’ll cover that in a separate lecture. And then the conclusion of all of this is that pleadings are important you must have a basic understanding of the underlying legal principles because your facts are going to support or are required to support the legal conclusions that you want the court to draw and so you frame your facts accordingly. And if you’re not clear about the legal underpinnings of what you are arguing in the pleadings, then you must go seek advice from a lawyer, get a consultation, ask the lawyer to review your pleadings or get some coaching, but make sure that everything that you put in the pleading is properly in there, it’s covered, you’re not missing out on either any factual issues or legal issues that you need to deal with.

Hopefully, these lectures give you a good understanding of what pleadings are about, Defense, Claim, Reply. And we’ll keep building on this information. Please send us an email or put comments in YouTube so we can address some of the questions that arise in your mind and hopefully we’ll continue to benefit from these lectures. Thank you for watching.