If you are being sued, whether in the Superior Court of Justice or the Small Claims Court, you have a limited time within which to file your defence to the statement of claim. If you were served in Ontario, then you usually have 20 days to respond. If you are outside Ontario but in Canada or the USA, you have 40 days. If served elsewhere in the world, you have 60 days within which to file your defence.
These are very important timelines. If you fail to meet this timeline, then the plaintiff becomes entitled to note you in default and then obtain default judgment against you. The default judgment can be set aside on a motion but it is not guaranteed that the motion will succeed. If you fail on that motion, and subject to any appeal, YOU JUST LOST YOUR CASE. So it is important to ensure that the deadline is met. If the deadline cannot be met for any reason, you can always ask the plaintiff’s counsel for a reasonable indulgence. You can also file a Notice of Intent to Defend. These are simple actions, but they are very important in preserving your rights.
What if you have no defence at all?
Many times you feel that you have no defence when in fact you do. The reason is that unless you understand and know the law, you really cannot be sure that you will lose. Your liability is based not on the facts of the case per se, but on the evidence and the law. Evidence and facts are not the same thing. And the law does not always make sense based on what the facts are. So that is why we have a court system. It is not for you to decide whether you are liable or not – it is the court. The parties can, and usually do, decide to settle a case or parts of it, but underlying the whole system is the fact that the court is person responsible for deciding who is liable.
As an example, look at debt cases involving loans. Many times, one a debtor is sued by a creditor, the debtor has no defence to the claim. The debtor either borrowed the money or not. If the loan was made and not repaid then the case appears to be slam dunk. But what about the Limitation Act? If two years have passed since the loan was due or since the last payment, then the debt may be unrecoverable at law even though there is no doubt that the debtor borrowed funds and failed to repay as agreed. Additionally, a loan transaction is generally made by contract, so if the rules of contract were not complied with, the loan may be invalid and may be unrecoverable. If the debtor was a minor or incapacitated, then the loan may be invalid. If the debtor did not understand the loan transaction, again it may be that the loan is invalid for that reason.
So you can see, even in a clear case, you may have an arguable defence. And many times that is all you need.
Now even if you do not have an arguable defence, it is still a good idea to defend a case. If you do not defend and are noted in default, you will have no right to know what is happening in the action. If the claimant falsely inflates the amount owed, you may well not be able to argue against it. If the claimant leaves out some crucial fact, you may not have the opportunity to point this out to the court. Remember, your defence does not have to dispute all of the matters in the statement of claim, just the things you disagree with.
It is usually best to defend a case and not be noted in default. The claimant/plaintiff can ask for summary judgment if you have no real defence. But you have to get notice of everything that is happening. So make sure to stick to the timeline, and file a defence.
If you are sued and are not sure what to do, give me a call at 416-840-6279. For a limited time, I am providing free consultations to new clients. This will allow you to get an idea of some of your options.