Preparing and Filing Defences
This article deals only with Ontario Small Claims court matters.
When you are served with a Plaintiff’s Claim, you have 20 days from the date of service in which to serve and file a defence. Ignoring the Claim will likely result in you suffering financial harm. Serving a defence means that you provide it to the Plaintiff in a manner that is set out in the small claims court rules. Filing the defence means that you provide the defence to the court also in a manner that is set out in the small claims court rules. Along with providing your defence to the court, you must also provide the court with an affidavit of service which evidences that you served the defence on the Plaintiff.
If you don’t file a defence, the Plaintiff may note you in default and then obtain a judgment against you without you receiving any notice that the Plaintiff is doing so. Of course, in order to file a defence, you must have a valid defence to the Plaintiff’s Claim that has been served on you. If you owe the money being claimed, there is a place on the defence form to indicate that you acknowledge the Claim and to offer a payment plan. This will be dealt with in a separate article.
Even if the Claim appears valid and you think you owe the money, you should consult with a legal professional to review your options. There may be a legal defence that you are unaware of. Two examples would be that the claim against you may be invalid because it is statute barred, or the Claim against you offends the Consumer Protection Act, or, or, or.
It is a good idea to consider filing a defence even if it is for only a part of the amount claimed in order to reduce your exposure and the amount that you may have to pay.
Preparing a defence requires skill and experience. I recommend that you consult with an experience paralegal or lawyer before doing your own defence.