How to Draft a Statement of Defence

This article on how to draft a statement of defence 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 defences 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 defence? Going to Court should be a last resort once you’ve truly exhausted all other avenues, such as negotiation and mediation. It is possible that a plaintiff will agree to extend the typical 20 day deadline to serve and file a statement of defence in order to have settlement discussions. After all, the statement of claim was probably served to get your attention and coax you to pay.

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 statement of defence, here are some tips.

Step 2: Thinking Ahead

  1. What insurance policies do you have? May any of them trigger an insurance company’s obligations to defend the claim and pay any damages?
  2. Who is the right 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? If the wrong plaintiff sued you, they might not have a claim.
  3. Who is the right 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? If the wrong defendant is sued, that can spell doom for the case.
  4. In plain language (legalese aside for the moment), why are you being sued? What is your defence? Can you explain your defence in a single paragraph? Single sentence? If not, why not? Statements of defence 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 defence is concise or convoluted.
  5. 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. The plaintiff must allege facts that support each of the elements of any cause of action pled (relied on). Failure to do so may provide a defence that the plaintiff has no reasonable cause of action.
  6. Speaking of damages, what are the plaintiff’s losses, if any? Do you have any idea how to value the plaintiff’s losses? How do you suppose the plaintiff would explain their 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 served and possibly before you go through the trouble of drafting a statemetn of defence. The most effective offer is one that you can realistically beat a trial, for that has costs consequences for the other side.
  7. Most claims must be started within 2 years of something happening or a claim being discovered. This is known as the limitation period. To raise a limitation period defence, a defendant must plead and rely on the Limitations Act, 2002. 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.
  8. Statements of defence must be delivered (served and filed) within 20 calendar days of service, if the defendant is served in Ontario. It’s possible to serve and file a notice of intent to defend to buy 10 additional calendar days. As indicated earlier, the deadline for a statement of defence can be extended by agreement of the parties in order to explore settlement.
  9. Are there any counterclaims (against the plaintiff), crossclaims (against other defendants) or third party claims (against someone not yet involved in the claim). Counterclaims and crossclaims are issues added into the defence and third party claims must be issued (started) within 10 days of serving and filing a defence.

Step 3: Form

  1. What precedent or template are you using for your notice of intent to defend or statement of defence? 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 defence. You can download a professionally formatted notice of intent to defend and/or statement of defence, including a backsheet from our Court form library by clicking here. This link will also take you to our statement of defence denial precedent that will help you organise your defence approrpriately.
  2. If you haven’t seen a sample statement of defence, written by a lawyer for the type of case you are defending, it will help to review one. Most law libraries have books and Continuing Professional Development (CPD) articles with sample defences. 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. To assist in drafting the statement of defence, we’ve created a precedent statement of defence denying all claims, which can be downloaded here.
  2. A Court file no. will be assigned by the Court when the plaintiff issues (formally start) the Court case. You put the Court file no. on the statement of defence.
  3. Start with the general heading, which is where the plaintiff and defendant names go. Ensure to include everyone and to spell their names correctly as they appear in the statement of claim. Include aliases and trade names as they appear in the statement of claim. For example, “Jonathan Smith aka Jon Smith” or “Widgets Import Export International Inc. O/A Widgets International”.
  4. Paragraphs 1, 2 and 3 set out what is admitted, denied and unknown respectively. This is done by referencing which paragraphs of the claim are admitted, denied or for which there is no knowledge.
  5. 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 the plaintiff has gone the simplified route, there is a sentence in capital letters that is inserted before paragraph 1 of the statement of claim stating “THIS ACTION IS BROUGHT AGAINST YOU UNDER THE SIMPLIFIED PROCEDURE PROVIDED IN RULE 76 OF THE RULES OF CIVIL PROCEDURE.” If the plaintiff is claiming more than $200,000.00 and the defendant wants to follow the ordinary procedure, then it is up to the defendant to object to the simplified procedure in their statement of defence.
  6. Starting at paragraph 4, the defendant can explain who the parties are unless that is already done and done so correctly in the statement of claim. 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.”
  7. After explaining the parties, it can help to have a section titled “Overview” where the defence in a nutshell is described in a few sentences.
  8. Next is the body of the defence, that sets out the key facts at a high level, which is referred to as “material facts”. This is a good time to review rules 25.06 and 25.07 of the Rules of Civil Procedure, which sets out rules for pleadings and defences. Click here to have a look.
  9. The body of the defence 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 defence, the story should be understandable.
  10. In defending a claim, it is important to include any statutory defences (requires analysis of the type of claim being made), any limitation period defences, any defences on the issue of liability (missing or denial of essential element of breach of contract, negligence, etc.) and any defences on the issue of damages (no damages, exaggerated damages, failure to mitigate, etc.).
  11. You are not allowed to “plead evidence”. For example, you cannot copy and paste contracts or emails into a statement of defence. You can’t attach documents to a statement of defence (note: in Small Claims Court you do attach documents to a defence).

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 defence 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 defence will is sound and raises all applicable defences.

With drafting complete, a statement of defence is ready to be served and filed. Filing can be done online here.

Consultation to Review Draft Statement of Defence

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

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