What Should a Person Do If Named As a Defendant In a Small Claims Court Case?

When a Defendant Receives a Small Claims Court Lawsuit It Is Necessary to Respond Both Promptly and Properly Within the Required Time and By Submitting the Mandatory Documents Prepared Using the Prescribed Format.

Understanding What a Defendant Must Do After Being Served With a Small Claims Court Lawsuit

Lawsuit Document After you are served with a Plaintiff's Claim document, being the paperwork that starts a Small Claims Court lawsuit, there are many steps that you must take.  If you fail to respond, or fail to respond as required, you may be Noted in Default, meaning deemed as admitting the allegations against you.  Accordingly, properly responding to the lawsuit is imperative.

Avoiding a Default

If a Defendant fails to respond promptly and properly to a Plaintiff's Claim and the Defendant does wish to defend the case, a procedure that is referred to as a Setting Aside Default may be available; however, restrictions and costs are likely to arise within the Setting Aside Default procedure; and accordingly, responding in the proper course is always proper.  Accordingly, when a Plaintiff's Claim is served upon a Defendant, the Defendant should avoid delays that may result in additional costs in both terms of time and money.  The extra steps for being Noted In Default, involve a court hearing, known as a Motion for Setting Aside of Noting In Default.  The requirements for a Setting Aside of Noting In Default, including the court rules and points for review, were explained in the case of Harris v. Abram’s Towing Services 84 Ltd., 2021 CanLII 30238 wherein it was said:

[3] Pursuant to Rule 11.06 of the Small Claims Court Rules, the court may set aside the noting in default or default judgment against a party and any step that has been taken to enforce the judgement, on such terms as are just, provided that it is satisfied of the following:

a) The party has a meritorious defence and a reasonable explanation for the default; and

b) The motion is made as soon as is reasonably possible in all the circumstances.

[4] It is well settled jurisprudence that in order for a party to be successful in setting aside a default judgement in addition to the above-noted test that is set out in Rule 11.06 of the Small Claims Court Rules, the court must also consider the potential prejudice to the moving party should the motion be dismissed as well as the potential prejudice to the respondent should the motion be allowed and the effect that any order that the court might make on the overall administration of justice. The test and additional factors were considered and applied in the case of Mountain View Farms Ltd. v. George Donald McQueen, a decision of the Ontario Court of Appeal. Gillese, J.A. on behalf of the Ontario Court of Appeal at paragraphs 48 and 49 wrote as follows:

[48] The court must consider the following three factors:

(a)  whether the motion was brought promptly after the defendant learned of the default judgment;

(b) whether there is a plausible excuse or explanation for the defendant’s default in complying with the Rules; and

(c) whether the facts establish that the defendant has an arguable defence on the merits.

[49] To this list, I would add the following two factors the court should have regard to, as set out in Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. 2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:

(d) the potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) the effect of any order the court might make on the overall integrity of the administration of justice.

As shown, there are various legal hurdles to overcome within the Setting Aside of Noting In Default process.  Within the process of addressing these legal hurdles, the costs to yourself, and will be owed to the Plaintiff, increase significantly; and accordingly, as above, respond to a Plaintiff's Claim promptly and properly and thereby avoid the need for the Setting Aside of Noting In Default process altogether.

Drafting a Defence
Preparing Your Document

Preparing a good legal defence to a Small Claims Court case requires the drafting of a Defence document that obeys the rules of pleading, uses the proper form, and embodies the facts that will support the theory of law that will be argued throughout the Small Claims Court proceedings.  A good legal defence contains what is properly included and what is properly excluded.  The mandatory document for a defence is known as the Defence (Form 9A) and the specific rules about how to complete the form are provided within Rule 9.02 of the Rules of the Small Claims Court, O. Reg. 258/98, which state:

9.02 (1) The following requirements apply to the defence:

1.  It shall contain the following information:

i.  The reasons why the defendant disputes the plaintiff’s claim, expressed in concise non-technical language with a reasonable amount of detail.

ii.  If the defendant is self-represented, the defendant’s name, address, telephone number and email address (if any).

iii.  If the defendant is represented by a representative, the representative’s name, address, telephone number, and email address (if any) and Law Society of Ontario registration number (if any).

2.  If the defence is based in whole or in part on a document, a copy of the document shall be attached to each copy of the defence, unless it is unavailable, in which case the defence shall state the reason why the document is not attached.

Pleading Your Case Position

With the above knowledge of the required form and rules to obey when completing the form, the next step is state your case.

Admissions

Stating your case, starts with admissions to the Plaintiff's Claim statements or allegations that are agreeable.  For example, you likely agree that you live at a certain address or that you entered into a contract on a specific date.  There are likely many statements within the Plaintiff's Claim that are harmless to agree to; and accordingly, these statements should be agreed to.  If the Plaintiff used properly numbered paragraphs, you can simply agree by reference to the agreeable paragraphs.  For example, you may state:

1.  The Defendant admits, or agrees with, the statements or allegations contained within paragraphs 2, 3, 4, 5, 9, 14, 15, 22, and 26, of the Plaintiff's Claim.

Denials

The next step is to deny the Plaintiff's Claim statements or allegations to which you disagree.  Again, if the Plaintiff used properly numbered paragraphs, you can simply disagree by reference to the disagreeable paragraphs.  For example, you may state:

2.  The Defendant denies, or disagrees with, the statements or allegations contained within paragraphs 1, 6, 7, 8, 16, 17, 18, 19, 23, 24, and 25, of the Plaintiff's Claim.

Incomplete Knowledge

After pleading admissions and denials there are likely Plaintiff's Claim statements and allegations that are too vague too respond to or that refer to concerns that are unknown.  Where the Plaintiff's Claim used properly numbered paragraphs, such unknowns can be responded to by stating:

3.  The Defendant is without knowledge, or incomplete knowledge, of the allegations contained within paragraphs 10, 11, 12, 13, 20, and 21, of the Plaintiff's Claim.

Additional Statements

Following statements of admissions, denials, and incomplete knowledge in reference to the Plaintiff's Claim, the Defendant then provides factual statements from the viewpoint of the Defendant.  For example:

4.  On or about July 15 2020, the Plaintiff sent an email to the Defendant.

5.  The email requested cancellation of the contract.

6.  The Defendant agreed to cancel the contract.

7.  Accordingly, the Defendant treated the contract as cancelled.

Defence Theories

Within this part of a defence pleading document, legal theories can and should be identified so to avoid possible accusations of ambush and perhaps prejudice by a loss of the right to argue such theories during court proceedings.  Essentially, by identifying the legal theories that will be argued, the Plaintiff, and the court, are provided with notice of the intended argument.  As an example:

8.  Whereas the Plaintiff stated a request to cancel the contract, it was the Plaintiff who repudiated the contract; and accordingly, the Defendant is without breach of the contract.

Pleadings & Reliances

This part of a the defence pleading document provides notice to the Plaintiff of the statutes, among other laws, that will be relied upon and argued as supportive of the Defendant.  While some may perceive that surprising the Plaintiff may be a better strategy than providing advance notice of the laws that will be argued, the courts show disdain for ambush.  Additionally, by providing the Plaintiff with advance notice of the relevant law, the Plaintiff may be better appreciative of any weaknesses in the case of the Plaintiff and thereby in a mindset to resolve the matter at an earlier stage of the proceedings.  Furthermore, if the Plaintiff ignores the advance notice of the law that shows the weaknesses, the court may be more likely to award a costs penalty against the Plaintiff who acted unreasonably, by ignoring the law; and accordingly, doing so may be the best interest of the Defendant.  An example may read as:

9. The Defendant pleads and relies upon:

     (a) The Courts of Justice Act, R.S.O. 1990, c. C.43;

     (b) The Rules of the Small Claims Court, O. Reg. 258/98, Rule 19.06, among others; and

     (c) The further statutes and regulations as may be further disclosed prior to Trial.

Pleading Document Examples

Below you will find sample pleading documents for a hypothetical Small Claims Court case involving allegations by a fictitious homeowner as against a fictitious roofing contractor.


Plaintiff's
Document

Sample Plaintiff's Claim


Defendant's
Document

Sample Defence

As shown within the above sample pleading documents, the proper drafting of lawsuit documents, even for the Small Claims Court, involves an understanding of the required forms and the proper content, among other things; and accordingly, obtaining professional assistance from a lawyer or paralegal, such as KLP Paralegal Services may be prudent and wise for the protection of your best interests.

Summary Comment

If you are named as a Defendant in a Small Claims Court lawsuit, it is necessary to respond promptly as properly.  Avoid being deemed in default.  Carefully review the allegations against you as well as the carefully reviewing the law that is relevant to the allegations including the law that is both for, or against, you in the specific circumstances of the case.

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