You’ve been served…now what?

 In Commercial Litigation

Being named as a defendant and served with a claim in Ontario can be overwhelming, often coming out of left field.  If it is your first time involved in the litigation process, there are several important things you should be aware of.

Determine which level of court you are in

 In Ontario, different courts govern different types of litigation. If the claim is for an amount under $25,000.00 (excluding interest and costs), the Ontario Small Claims Court has jurisdiction.  For amounts over $25,000.00, the Ontario Superior Court of Justice is the proper forum.

Timing is Key

If your matter is proceeding in Small Claims Court, the Rules of the Small Claims Court, dictate that you have 20 calendar days to serve and file your Defence, or risk being noted in default.

Under the Ontario Rules of Civil Procedure, if you are sued in the Ontario Superior Court of Justice, and are served in Ontario you also have 20 days to serve and file a Defence.  However, this deadline can be extended if you retain the services of a lawyer.  A lawyer can serve and file a document called a Notice of Intent to Defend.  This document allows for an additional 10 days to prepare a Defence.

Prepare your Defence

 Your Statement of Defence should identify what allegations, if any, you admit or agree with, what allegations you disagree with and will contest, and any allegations of which you have no knowledge.  It is important that you discuss all aspects of your Defence with your lawyer as a Statement of Defence is also your opportunity to advance your own version of events.

Consider whether a counterclaim is appropriate

In some cases, you may have experienced damages caused by the plaintiff in the original claim that stem from the same issues.  If so, a counterclaim may be appropriate in the circumstances.  A counterclaim provides a defendant with the opportunity to seek relief against the original plaintiff.

If a third party or another defendant is responsible for the alleged damages, it may also be possible to initiate a claim to bring them into the action.

A counterclaim in the Ontario Small Claims court is referred to as a “Defendant’s Claim”.  And is filed using a separate court form from your Defence.

Contact your lawyer early

When served with a claim in Ontario, it is important to speak with legal counsel early, in order to ensure that no deadlines are missed, and all possible defences or counter claims are considered.  Be sure to provide all relevant documents and information that will help you put your best foot forward.

Shauna Cant is a member of the Commercial Litigation team. She can be reached at 613-369-0359 or at shauna.cant@mannlawyers.com.

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