Statement of Defense in a Civil Action in Ontario – Basics for Beginners [video]

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We have provided a series of lecture on the topic of commencing a civil action in Ontario. This lecture specifically deals with drafting and service of a statement of defence and explains the basic concepts in an easy-to-understand language.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone, this is Amer Mushtaq from You Counsel. Today, we’ll talk about drafting a Statement of Defense in a civil court action in Ontario, and the example that we’re providing in this lecture is very basic, very simple, so that you could understand the fundamental concept of a statement of defense and how do you go about serving and filing it. We have already talked in previous lectures about how do you commence a court action a civil court action in Ontario in the Superior Court of Justice, we have covered some basic steps. We also have provided a lecture on drafting statements of claim, that is also there. We also have done another lecture on completing the information for court use form, which is also a step. So, today we are going on the other side of the situation, where we’re dealing with the defendant, once the defendant has been served with a statement of claim, what he or she has to do in order to defend himself?

We begin with a disclaimer, that this course is not legal advice, so if you have any specific questions, you should contact a lawyer or a legal professional.

And we’ll start with the basic example that we had used in other lectures, the case that we prepared was Mary had loaned $100,000 to John. John has refused to pay back that money and then Mary has gone to the court to seek a judgment against John for $100,000. We have also mentioned previously that there are 2 specific legislations, at least these 2, that are very important for you to review, because these relate to the procedural aspects of your court action and you need to know various steps, the timelines, the process, to properly defend yourself. Both of these are available online, we have referred them previously, we have shown you what these legislation look like and what kind of information they contain, so by all means check those lectures.

Now, we begin with the fact that, what if you did would you decide not to defend a court action? And you may have some legitimate reasons, legal reasons for not defending a court action and we’re not really covering, you know, all of those things, this lecture is not exhaustive or any of these lectures are not exhaustive, we’re covering the basic topics. So, for example, you may challenge, one of the reasons, you may not want to defend the court action, is you challenge the jurisdiction of the Ontario Court. You may believe that whatever Mary is claiming, whatever the facts, she is claiming, never happened in Ontario. Ontario has no relationship to it. It either should have been in another province or another country, and in that case, rather than defending you, bring a motion to have the matter dismissed, because of jurisdictional issues and whatnot. But we’re not covering those issues. Let’s say you are in a situation where you just don’t want to defend it for whatever reason. You think Mary has no case, you’re upset and you decide not to file defense or not to take any action, what are the consequences? Mary can go bring a motion in court and have you Noted in Default, Noting in Default means the court is now putting in its document that John has not served and filed his Statement of Defense so he has not taken the step that he was required to take in order to defend himself, so you have been Noted in Default. The consequence of having Noted in Default, is that you will no longer be entitled to any notices, any steps in that court action anymore because you’re not participating, so you’re not entitled to anything, so you wouldn’t know what further steps Mary is taking in that court process.

And then Mary can go and proceed with a motion for default judgment, and what that means is, Mary will say that no defense has been filed, so the judge award me $100,000 judgment against John, because that’s what I’ve claimed and she may very well get that judgment, and then she can proceed and have that judgment enforced against John. So ideally, if you have been served with the statement of claim, you really don’t have much option then to defend yourself, no matter how strongly you believe that the case has no merits. Because, only a court, only a judge in this matter can decide whether the case has merits or not, and so even if you find that this action is a nuisance for you, you have no option but to defend it.

First thing, you want to keep in mind is the timeline, that’s the most important part, because if you miss the timelines, then Mary can take those steps such as noting you in default and proceeding with a default judgment. So the timeline for filing of Statement of Defense is dependent upon where the statement of claim was served on you, and if you, in the previous lecture, Statement of Claim, we showed you the document, the Statement of Claim document, and you will see on the very first page of the Statement of Claim, the court has already provided some information to you, the defendant saying what are the timelines that you have available to you. And in that document, it does say that if you were served with a claim in Ontario, this being an Ontario claim, you have 20 days to file your defense. If you were served and not in Ontario, but elsewhere in Canada, or in the United States, you have 40 days, and if you were served outside of Canada and the US, then you have 60 days to file your defense. So where you are served is important, and you want to make sure that you note down the timeline for your filing of Defense.

Second point, you want to keep in mind is that your 20 days, 40 days, 60 days, whatever the case may be, begins from the date when you were served with a claim, it has nothing to do with the date of the issuance. Issuance is the date when the claim was issued, we’re talking about when you would actually served either by fax or in person or whichever way you received the statement of claim, your counting of days begins from there. Now, one more thing, you want to keep in mind is that there is a form of available online Rules of Civil Procedure form Cause Notice of Intent to Defend. If you fill out that form, serve it on the opposing side the plaintiff, file it with the court with the proper fees, then it adds 10 more days to your time or filing of defense. So if its 20 days that become 30 days, 40 becomes 50, and 60 and 70 days. So you can get 10 additional days if you file a notice of intent, but you must file it within the time period. So, if you had received 20 days within Ontario, then within 20 days you have to serve and file a Notice of Intent to Defend, in order to get another 10 days.

Now, let’s get into the steps that you are required to undertake to prepare and serve and file your statement of defense. The steps are basic, you download the form statement of defense, you draft your statement of defense, you serve it on the plaintiff or the plaintiff’s lawyer as the case may be, you prepare an affidavit of service, which is a document basically confirming to the court that you have actually served the defense on the plaintiff. Then, you print 2 copies of the statement of defense, you take your affidavit of service the original and take the court fees, and then go and file it with the court, and that’s how you are now in the court system, you get a stamped copy back, which indicates that you have filed your statement of defense.

Okay, so statement of Defense is an important document, what’s the purpose of a statement of defense? Essentially you are asking the opposite of what Mary is asking. So Mary is asking the court essentially, that the court should award a judgment against you for a $100,000. You are asking the court that the court should dismiss Mary’s claim in its totality or partially, whatever your position is, because Mary’s claim has no merit. So, that’s what you want out of the court, you want the court to dismiss Mary’s claim. And then why do you want the court to dismiss it, that’s your side of the story, you provide your facts to explain to the court or prove to the court or demonstrate that Mary’s claim has no merits.

So, what are the contents of statement of defense? The principles for these contents are no different than the principles that I had outlined and drafting of the Statement of Claim. You want to make sure that you describe facts in your statement of Defense, not evidence, you don’t need to talk about, you know, the email correspondence and quote the email correspondence or text messages. You’re basically providing a summary of facts, in terms of what actually happened. With respect to evidence, you will have an opportunity later in the court process to actually provide all evidence and obtain all the evidence from the other side. But for the purposes of statement of defense, you’re only providing facts. You want to make sure that your statements are concise, you’re not telling lengthy stories, your narrative this concise and simple, you want to make sure that you mention only relevant facts, irrelevant facts should not be part of the statement of defense and facts that are material. Material facts are those that actually when proven true, support your position, support your position in this case that Mary is not entitled to the money she is claiming. You must put each allegation in a separate paragraph. Allegation is generally used for every single fact that you are stating in your claim or in your defense, they’re all called allegations generally and in this process. So, each allegation is in a separate paragraph, and then you want to make sure that he’s paragraph is numbered consecutively.

The applicable rules that we have covered in here are no different than what we have covered in a Statement of Claim, the Rules of Civil Procedure Rules 25 to 29 that deal with pleading, Rule 18.01 deals with the service, and then Rule 26 deals with the amendments.

So, we have already shown you the rules of civil procedure, you just go on Google type in “Rules of Civil Procedure”, and then you get the rules of civil procedure, here you can check the contents and I said. When you scroll down, you see here, commencement of proceeding is 13 to 15, and then pleadings are 25 to 29, so you can click on these rules and read all of those. With respect to the forms, as I said, you type it in Google “Rules of Civil Procedure form”, and you see all of the forms that are listed here, and statement of defense as you notice is form 18A, and I previously explained that these form numbers relate to this specific rule in the Rules of Civil Procedure, so that’s helpful. You click on it and it will open a Statement of Defense document, this is the form that is available online and you can download it. And I have already prepared a Statement of Defense for the same matter, just as an example of very very basic, but to give you a sense of how you are drafting your Statement of Defense. So, this is the statement of defense, the opposite side, you want to make sure that you insert the court file number here, so that when you’re filing it, the court knows what court file number it is. And then, you have Mary Kozner, John Smith, this is the plaintiff, this is defendant, you copy it exactly as it was in the Statement of Claim, and then, you draft your Statement of Defense. When you started the Statement of Defense, generally speaking, first thing you want to address, is what is it that you agree or disagree from the statement of claim. So, if there are certain things that you admit, then you would like to mention that. So, for instance, the defendant John Smith admits paragraphs so and so of the Statement of Claim. So, for instance in this case, if you admit that you and Mary were childhood friends, then you would refer to that paragraph and say I admit that we were childhood friends. If you disagree with every single thing that is stated in the Statement of Claim, then you basically say John Smith denies each and every allegation raised in the Statement of Claim, so that’s how you do it. If you have admitted to certain things, then you say you deny certain things, but you want to make sure that you cover that, you don’t leave out any paragraph of the Statement of Claim hanging, not having addressed in this way. So for the purposes of, you know, being cautious, many statement of defense generally start by saying that the defendant denies each and every allegation in the Statement of Claim unless specifically admitted. And so, when you start with that, then you can put your side of the story and say yes, we’re childhood friends. So, you start with the denial, and then you start admitting that. And one way, it’s sort of your preference, you can do it one way or another, some lawyers prefer it doing this way, because then you can have your complete story the way you put it. So, you can start by saying we’re childhood friends and then move on with the story, as opposed to just picking which parts you agree and which parts you don’t. Anyway, moving down, you know, in this example, Smith agrees that he did receive money from Mary, but what he disagrees is that this was not a loan, but this was a gift, right? And so, then, he adds his side of the story. So, because the court wants to know, okay Mary says she gave you $100,000, you admit that you received $100,000, so what actually happened? Is it a loan or is it a gift? And so, you are now providing your side of the story, and in this case you’re saying an example that not only you and Mary a childhood friends, but your fathers were best friends and then at some point in the past your father had helped Mary’s father when he was having financial difficulties, and so now that you were having financial difficulties, Mary decided to help you out and give you a gift not as a loan, and then within a few months, there were some family disputes, family fights between children which got the whole families embroiled in it to a point that you’re not even now in a talking terms, and Mary has out of spite maybe commenced this action in retaliation. So, what you’re saying is that essentially, she gave this money to me as a gift, but now that we’re not talking, we’re not friends anymore, she is now changing her mind retroactively and trying to say that this was a loan not a gift, which is not true right. So, if this story has validity, if the court agrees with this story, then the court may throw away throw out Mary’s court action, so in the end, what you’re saying is that she has no claim and you are asking this honorable court to dismiss the claim with cost, and then you are agreeing that the case can be tried in on in Toronto. You put your information here, enter the date and you put the Mary’s lawyers information or Mary’s information, whichever the case may be, and then you complete the back page and you complete the form and serve it on Mary, and then take it to court for filing. So this is a very, very simple example of a statement of defense that you can file.

Now, with respect to the court fees, I had mentioned in previous lectures that if you type in Ontario court fees, you will come to this regulation, Ontario regulation 293/92, which talks about all kinds of court fees, and then if you scroll down you’ll notice that a statement of defense and Counter Claim adding a party, the fee is $220. So in this case, you will take $220 to the court, and then file your statement of defense.

So, in conclusion, you want to keep in mind that your statement of defense is a very important document. And you need to understand the underlying principles, at least in terms of how you’re going to defend yourself. So, in this case, the example that we’re using is the underlying principle is that a gift is something that is given and it’s not returnable, a loan is a contractual thing and you have to return it. So if that’s the legal principle, then the fact that you’re arguing is that this was a gift and not a loan, and therefore the court should throw out, should dismiss Mary’s claim. But in different cases, your case may be a bit more complicated, factually and legally, and so one approach you could have if you’re not clear about your legal issues, is that consult with a lawyer, sit down, have the case reviewed, make sure you understand it, even if you’re drafting the defense yourself, have a lawyer review it just so that you understand that you are doing what needs to be done to defend your court action, and you don’t miss out anything. So, these are some of the ways you can do it.

If anything is unclear, please contact us on through any of these ways, and we’ll be happy to answer those questions and add more lectures. We’ll get to in the next lecture, the drafting of our reply and we’ll continue to use this example, and hopefully that will give you a full sense of how pleadings are drafted in sort of this basic example. So, thank you for watching, and I look forward to seeing you in the next lecture.

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