Area of Law: Small Claims Court
Answer # 548
What is a Defendant's Claim?Region: Ontario Answer # 548
A defendant who is sued sometimes has a claim of their own against the plaintiff that sued them, or against somebody else. In Small Claims Court, this is called a Defendant’s Claim. You can obtain this form online or from a Small Claims Court office.
A Defendant’s Claim is a separate claim made by the defendant against the plaintiff or some other person. If you are being sued by someone and you have a reason to sue them, you can file a Defendant’s Claim against the plaintiff. Sometimes a plaintiff does not sue the right person. If you are being sued and you believe that another person is responsible for all or part of what the plaintiff is claiming, then you may be able to bring that third person into the lawsuit.
In either case, however, both lawsuits can usually be heard at the same time, so that all the issues can be resolved at once. Also, a Defendant’s Claim may be about a different problem than the plaintiff’s lawsuit. Even if you decide to file a Defendant’s Claim, you still need to file a Defence to the plaintiff’s original claim.
In most cases, you only have 20 calendar days from the day you file your Defence to also file your Defendant’s Claim. If you are late, you will have to ask a judge for permission to file it.
Completing a Defendant’s Claim form
Defendant and plaintiff information
There are three sections of the Defendant’s Claim that must be completed. The first section identifies who is involved in the lawsuit. Although this is a Defendant’s Claim, you are now referred to as the “Plaintiff by Defendant’s Claim” as you are the one bringing the claim.
Be sure to fill in all the information requested on the form, including the proper legal name and address of the party you are claiming against, now known as the “Defendant by Defendant’s Claim”. The “Defendant by Defendant’s claim is either the plaintiff in the original Plaintiff’s Claim, a third party that you are bringing into the lawsuit, or both, depending on what you are claiming. If you are suing more than one party, you must complete an Additional Parties form and put it behind page one of your Defendant’s Claim form.
Reasons for claim
The second section requires you to state the reasons for your claim, including the amount claimed. The maximum amount can be up to $35,000. You can also ask for costs, which are the expenses that you paid to bring your case to court. Costs include things such as the fee for filing the Defendant’s Claim, photocopying charges, postage, and may include fees paid to a legal representative. If you win your case, the judge may order the defendant to pay you some or all these costs up to a value of 15% of your claim.
On the form, you are asked to explain what happened, where it happened, and when it happened. You will need to write all the important facts of your case and a description of what you are claiming. It is best if you write a separate, short paragraph for each thing you are claiming. You should number your paragraphs and list all the facts in the order that they happened. You should not include arguments or opinions. Always list the date when something happened, and the names of the people involved. When referring to yourself, you should write “the plaintiff by defendant’s claim.” When referring to the person you are suing, you should write “the defendant by defendant’s claim.”
Be brief in writing the facts of your case, and put in only what is necessary for the other parties and the judge to know what your case is about and why you are claiming the amount you have written on the form. If you need more space than is provided on the form, you may attach extra sheets of paper. Check the box “Additional pages are attached because more room was needed.” Make sure the writing is clear and readable.
If you are relying on a contract, a receipt, or a letter, be sure to attach a copy of the document to your claim. If you do not have a copy of the document, you must write the reason you do not have the document in the space at the bottom of the form. For example, if a store refused to give you back your receipt, you should state that fact as the reason you do not have the receipt.
In the third section of the Defendant’s Claim, it allows you to claim for pre-judgment interest. Pre-judgment interest is calculated from the day the problem occurred until the day the judge decides the outcome of the case. The interest rate for pre-judgment interest will usually be the rate used by the courts at the time of the lawsuit, unless another rate has already been agreed upon by you and the defendant.
Serving a Defendant’s Claim
You must deliver a copy of the Defendant’s Claim and your supporting documents to each of the people you are suing. This is known as “serving your Claim“. How you serve your Claim depends on if the party you are serving is an individual or a business. The rules for serving a Defendant’s Claim are the same as for serving a Plaintiff’s Claim. Please see 543 Serving a Plaintiff’s Claim.
Once a claim is served, the defendant will have 20 days from the effective date of service to file a Defence.
If you are unsure about how to complete a Defendant’s Claim, the staff at the Small Claims Court may provide you with further information. For more information about Small Claims Court in Ontario, visit the Ministry of the Attorney General.
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