How to Draft a Statement of Claim

This article on how to draft a statement of claim covers 6 steps to help with your drafting. The article is geared towards Superior Court (many, but not all concepts will apply to Small Claims Court too). It is legal information, not legal advice. I’ve read a lot of claims that run the full spectrum from excellent to terrible. The pleadings are the first thing a Judge looks at for a trial. The excellent pleadings are an easy to follow story covering the 5 Ws: who, what, where, when and why.

Step 1: Can you Avoid Court?

First and foremost: why are you drafting a statement of claim? Going to Court should be a last resort once you’ve truly exhausted all other avenues, such as negotiation and mediation.

If you want to think about the bigger picture of your case, our Trial Methodology may help you think about things. Also our article Steps in a Superior Court Lawsuit outlines the road you’re about to embark on.

If you’ve decided to draft a statement of claim, here are some tips.

Step 2: Thinking Ahead

  1. Who is the plaintiff? Is there one or more plaintiffs? Are they individuals, partnerships or corporations? What are their legal names? Do they use an alias or trade name?
  2. Who is the defendant? Is there one or more defendants? Are they individuals, partnerships or corporations? What are their legal names? Do they use an alias or trade name?
  3. In plain language (legalese aside for the moment), why are you suing them? Can you explain why in a single paragraph? Single sentence? If not, why not? Statements of claim should be concise to be effective. As a guide, aim for between 3 and 10 pages (12 point font, 1.5 line spacing, lots of white space). If you’re over 10 pages, then consider whether your claim is concise or convoluted.
  4. What is the legal basis for the claim? Is it for breach of a contract? Negligence? Unjust enrichment? Something else? These are known as “causes of action” and it’s crucial to know the essential elements of a cause of action. For example, a breach of contract requires there to be 1. a contract 2. a breach of the contract and 3. damages. You must allege facts that support each of the elements of any cause of action pled (relied on).
  5. Speaking of damages, what are your losses? Do you have any idea how to value your losses? How would you explain your losses? In personal injury matters, there may be “general damages” for things like pain and suffering. In contract cases there may be business losses. If you haven’t made an offer to settle yet, you’ll want to do so shortly after a claim is issued. The most effective offer is one that you can realistically beat a trial, for that has costs consequences for the other side.
  6. Most claims must be started within 2 years of something happening or a claim being discovered. This is known as the limitation period. Miss a limitation period and the lawsuit will fail. Have a look at sections 4 and 5 of the Limitations Act, 2002 here. A word of caution: some limitation periods are less than 2 years and some are more.

Step 3: Form

  1. What precedent or template are you using for your statement of claim? You download free templates off the Ontario government site here, however, those are unformated, lacking a general heading and backsheet and typically used by self-reps who don’t have access to a formatted statement of claim. You can download a professional formatted statement of claim, including a backsheet from our Court form library by clicking here. *** Note: after multiple requests, we’ve recently added precedent statements of claim for breach of contract and for negligence. These easy to use precedents set the claims up and use yellow highlights to show the writer what changes need to be made. Click here to purchase a precedent breach of contract claim or a precedent negligence claim or a claim that alleges both breach of contract and negligence.
  2. If you haven’t seen a sample statement of claim, written by a lawyer for the type of claim you are making, it will help to review one. Most law libraries have books and Continuing Professional Development (CPD) articles with sample claims. The samples may be for situations more or less complicated, so use a bit of your own judgment. A great book is Bullen & Leake & Jacob’s Canadian Precedents of Pleadings. Other materials include O’Brien’s Forms and Williston & Rolls Court Forms and CPD article How Do You Plead?

Step 4: Content

  1. A Court file no. will be assigned by the Court when you issue (formally start) the Court case. This can be done online here.
  2. Start with the general heading, which is where the plaintiff and defendant names go. Ensure to include everyone and to spell their names correctly. Include aliases and trade names. For example, “Jonathan Smith aka Jon Smith” or “Widgets Import Export International Inc. O/A Widgets International”.
  3. Paragraph 1 sets out the claim for relief. Usually this is a claim for money, interest and costs. There are other claims that can be made, such as injunctions and declarations, but those are beyond the scope of this article and legal advice is recommended. A decision on the amount of money claimed will need to be made.
  4. If the claim is for more than $35,000 and up to $200,000, the claim falls into the simplified procedure, which is a somewhat faster and less costly approach than the ordinary procedure, which is for claims over $200,000. If you are going the simplified route, there is a sentence in capital letters that is inserted before paragraph 1 stating “THIS ACTION IS BROUGHT AGAINST YOU UNDER THE SIMPLIFIED PROCEDURE PROVIDED IN RULE 76 OF THE RULES OF CIVIL PROCEDURE.”
  5. Paragraph 2 starts to explain who the parties are. It’s to let the Court know who’s who and identifies them as individuals “the plaintiff, Jon Smith, is an individual who resides at Toronto”, partnerships or corporations “the defendant, Widgets International, is a company incorporated pursuant to the laws of Canada.” Sometimes a brief description will follow, for example “The plaintiff was an employee of the defendant” or “The defendant was an employer of the plaintiff.”
  6. After explaining the parties, it can help to have a section titled “Overview” where the case in a nutshell is described in a few sentences.
  7. Next is the body of the claim, that sets out the key facts at a high level, which is referred to as “material facts”. This is a good time to review rule 25.06 of the Rules of Civil Procedure, which sets out rules for pleadings. Click here to have a look.
  8. The body of the claim can use headings to help the reader follow along. The key facts should cover the 5 Ws: who, what, where, when and why. This is the short story version of what happened. From reading the claim, the story should be understandable.
  9. The short story also need to cover facts that make out any cause of action pled. For example, in a negligence case, it is necessary to allege facts that the defendant 1. owed a duty 2. breached the duty 3. the breach of the duty caused a loss 4. the losses reasonably flow from the breach (proximity) and 5. the plaintiff suffered damages.
  10. You are not allowed to “plead evidence”. For example, you cannot copy and paste contracts or emails into a statement of claim. You can’t attach documents to a statement of claim (note: in Small Claims Court you do attach documents to a claim).

Step 5: Jury?

It is during the pleadings stage that parties consider whether or not to have a Jury. A plaintiff can request a Jury or a defendant can. See rule 47 of the Rules of Civil Procedure, as well as section 108 of the Courts of Justice Act. From January 1, 2020 onwards, Juries are not available in simplified procedure cases (claims for $200,000 or less) except slander, libel, malicious arrest, malicious prosecution and false imprisonment cases (see rule 76.02.1(2) of the Rules of Civil Procedure). Juries are not available in Small Claims Court. You can click here to purchase a downloadable Jury Notice.

Step 6: Review

Like anything you write, it is important to review and edit. It’s also a good idea to have someone else read the draft claim to see if it makes sense to them. It never hurts to hire a lawyer on a limited scope retainer basis to review and comment on the draft. This can be valuable advice to make sure the statement of claim will enable the case to proceed.

With the statement of claim drafted, it can be issued (started) and served. Claims may be issued online here.

Consultation to Review Draft Statement of Claim

We are regularly consulted on draft statements of claim. Please feel free to set up a trial consultation to discuss further.

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