GOT TO DRAFT A DEFENCE? SOME HELPFUL GUIDANCE FROM OUR CANADIAN COUSINS
There is relatively little guidance given on the process involved in drafting a defence. There is some useful help given the the Law Society of Ontario Practice Area Resource “How to Prepare a Statement of Defence”. Some of this is specific to Ontario but much of it is of general assistance.
THE GUIDANCE: AN OVERVIEW
This is part of the guidance that Law Society of Ontario gives to practitioners.
- Step 1: Gather what you will need
- Step 2: Diarize the date for delivery of the statement of defence
- Step 3: Interview the client
- Step 4: Analyze the case
- Step 5: Prepare a draft statement of defence
- Step 6: Review and finalize the draft statement of defence
- Step 7: Deliver the statement of defence
- Step 8: Issue and file the counterclaim against the non-party(ies) or the third party claim (if any)
- Step 9: Serve the counterclaim against the non-party(ies) or the third party claim (if any) on the defendant(s)
SOME SPECIFIC GUIDANCE THAT YOU CAN USE AND ADAPT
“1 Gather what you will need
- The statement of claim and notice of action, if any
- Notes from client interviews
- Copies of any relevant documents in the client’s possession and control, including contracts, correspondence, waivers, receipts, invoices, and any other documents
2 Diarize the date for delivery of the statement of defence
- Conduct a conflicts search using the legal name(s) of all parties to rule out a conflict of interest.
3 Interview the client
- Discuss the allegations contained in the statement of claim with the client. Obtain the client’s version of the events, including relevant dates, locations, parties and other documents. Take detailed notes.
- Review and make copies of any relevant documents (paper as well as electronic documents) in the client’s possession and control, including contracts, written correspondence, emails, waivers, receipts, invoices and other documents.
- Advise the client of the client’s obligation to preserve all relevant documents in the client’s power, possession or control, including electronic documents.
- Immediately following the meeting, prepare a memorandum to file summarizing the information obtained from the client noting, among other things, the next steps to be taken on the file.
- Prepare a letter to the client including relevant retainer language and summarizing the discussion at the client interview. Identify next steps to be taken, itemizing those tasks to be taken by the client, and include a due date.
- Diarize the due date.
4Analyze the case
[The references here are to the Canadian Rules]
- Create a theory of the case based on the information obtained from the client. Identify possible defences to the allegations contained in the statement of claim.
- Review the statement of claim and consider whether a demand for particulars is required. If so, prepare and serve a demand for particulars. If the plaintiff(s) fail(s) to supply particulars within seven days of service of the demand for particulars, you may bring a motion for particulars (r. 25.10).
- If the statement of claim refers to specific documents, consider whether these documents should be obtained pursuant to a request to inspect documents (Form 30C and r. 30.04(2)).
- Determine whether there is a basis for a counterclaim against the plaintiff or any person not already a party to the main action (R. 27).
- Determine whether there is a basis for any crossclaims against any named co-defendants (R. 28).
- Consider whether there is a basis for any third party claim(s) (R. 29).
- Conduct legal research as necessary to explore possible defences and causes of action that might be used in a counterclaim, crossclaim and/or third party claim. Prepare legal research memoranda so that legal research is readily available for updating and for later use in the proceeding.
- Prepare an event chronology in point form, including references to key documents.
- Prepare a key documents brief that can be updated as the case progresses.
- Determine the legal names of any parties being added to the proceeding through a counterclaim. Conduct legal name searches as necessary. Retain results of the legal name searches in the client file.
- Obtain addresses for personal service on any parties being added as defendants to the counterclaim or third party claim, and determine if these defendants must be served outside Ontario, North America or elsewhere.
- If the claim has been brought under R. 76 determine, in consultation with the client, whether any objection will be taken to the action proceeding under r. 76.02(5). (See Step 5 below.)
- Consider whether your client may be required to pay security for costs as a result of commencing a counterclaim or third party claim (r. 56.01).
5 Prepare a draft statement of defence
- Consult firm precedents and library resources for precedent material that will assist in the drafting process.
- Prepare the general heading (Form 4A). Include the applicable court name and the title of proceedings, setting out the full names of the parties and the capacity in which they have been named as parties (rr. 4.02(1) and 14.06).
- Use Form 18A for the statement of defence. If a crossclaim or counterclaim is being combined with the statement of defence, use Form 28A, 27A or 27B. If a third party claim is being commenced, use Form 29A.
- Set out the following in consecutively numbered paragraphs (rr. 25.02 and 25.07):
- each allegation contained in a paragraph of the statement of claim that the defendant admits
- each allegation contained in a paragraph of the statement of claim that the defendant denies*
- each allegation contained in a paragraph of the statement of claim of which the defendant has no knowledge
[Remember the Civil Procedure Rules impose a duty to put forward an alternative version of events
(1) In his defence, the defendant must state –
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(c) which allegations he admits.
(2) Where the defendant denies an allegation –
(a) he must state his reasons for doing so; and
(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.]
6 Review and finalize the draft statement of defence
- Have the client review the statement of defence for errors, omissions and inaccuracies. Ensure that all material facts have been included.
- Make any necessary revisions and have another lawyer, a student-at-law, a law clerk or your assistant proofread the statement of defence”