Statement Of Defence Explained

Statement of defence or statement of defense: which spelling is correct?

Both spellings refer to exactly the same document. The difference is purely regional.

Defence (with a c) is the correct spelling in Canada, following British English conventions. Ontario's Rules of Civil Procedure use "defence" throughout, as does all Canadian legislation and court documentation.

Defense (with an s) is the American English spelling. You will see it used in US legal documents and American legal writing. It has no legal significance in Canadian proceedings.

If you are searching for information about a Canadian lawsuit and finding results that use "defense," the content and procedures described are likely American and may not apply in Ontario or BC. Always verify that the procedural information you are relying on is specific to Canadian law.

Filing deadlines: how long do you have?

Time is the most critical factor when you are served with a statement of claim. Ontario's Rules of Civil Procedure set strict deadlines that begin running the moment you are served, not the moment you open the envelope or become aware of its contents.

The 20-day deadline

The default rule under Rule 18.01 of Ontario's Rules of Civil Procedure is that a defendant must serve and file a statement of defence within 20 days after being served with the statement of claim. This applies where the defendant is served in Ontario.

Different timelines apply in limited circumstances:

• If the defendant is served outside Ontario but within Canada: 40 days
• If the defendant is served outside Canada: 60 days
• If the claim was issued in Small Claims Court: different rules apply entirely

Twenty days is not much time to review the claim, locate relevant documents, consult a lawyer, and prepare a proper response. This is why consulting a litigation lawyer immediately upon being served is so important: it preserves your options and gives your lawyer the maximum time to prepare an effective defence.

Counting the days correctly

Under Ontario's Rules of Civil Procedure, the day of service is not counted. The count begins the day after you are served. If the deadline falls on a holiday or weekend, it moves to the next business day. Getting the count wrong is a surprisingly common mistake with serious consequences.

What is a notice of intent to defend?

A notice of intent to defend is a short procedural document that a defendant can serve to buy additional time to prepare their statement of defence. It is governed by Rule 18.02 of Ontario's Rules of Civil Procedure.

Serving a notice of intent to defend within the initial 20-day period extends the deadline for filing the statement of defence to 40 days from the date the statement of claim was served. This gives the defendant a total of 40 days from service, rather than 20, to prepare their formal response.

The notice of intent to defend is a simple document: it does not require any substantive content about the defence itself. Its only function is to preserve the defendant's right to defend while providing additional time to prepare. It signals to the court and the plaintiff that you intend to contest the claim and are not ignoring it.

When should you use a notice of intent to defend?

A notice of intent to defend is appropriate when you need more time to gather information, locate documents, retain a lawyer, or prepare a proper defence but cannot do so within the initial 20-day period. It is the right tool in situations such as:

• The claim is complex and requires significant factual investigation before a proper defence can be drafted
• Key witnesses or documents are not immediately available
• You have only just retained a lawyer and they need time to review the claim
• You are in negotiations with the plaintiff and want to preserve your right to defend while exploring resolution

Filing a notice of intent to defend is almost always preferable to missing the deadline entirely. If you are unsure whether you can prepare a full defence within 20 days, serve the notice first and use the additional time wisely.

What happens if you do not file a statement of defence?

Missing the deadline without filing either a statement of defence or a notice of intent to defend has serious and immediate consequences under Ontario's Rules of Civil Procedure.

Being noted in default

Once the deadline passes without a response, the plaintiff can file a requisition with the court to have you noted in default. Being noted in default means the court has recorded that you failed to respond and are treated as having admitted the allegations in the statement of claim. You lose the right to participate in the proceeding without first obtaining the court's permission.

Default judgment

After being noted in default, the plaintiff can move for a default judgment. Depending on the nature of the claim, this can be obtained through a relatively simple process or by way of a motion. A default judgment is a court order against you for the relief claimed, entered entirely without your input or participation. It can include an order to pay damages, costs, and interest.

A default judgment has the same legal effect as a judgment after a full trial. The plaintiff can enforce it by garnishing your wages or bank accounts, registering it against your property, or taking other enforcement steps.

Setting aside a default judgment

It is possible to bring a motion to set aside a default judgment, but this is not automatic and is not guaranteed. To succeed, you must typically demonstrate that you have a reasonable explanation for the delay in responding and that you have a meritorious defence worth hearing. Courts have discretion and will consider whether setting aside the judgment would prejudice the plaintiff.

Setting aside a default judgment is more difficult, more expensive, and less certain than simply responding on time. It adds a layer of litigation on top of the underlying dispute that could have been avoided entirely by filing a timely defence.

What a strong statement of defence includes

A statement of defence is a pleading governed by Ontario's Rules of Civil Procedure. Rule 25.06 requires pleadings to contain a concise statement of the material facts on which the party relies, but not the evidence by which those facts are to be proved. Getting this balance right requires legal skill: too little detail leaves the defence legally exposed, while too much turns the document into something it is not supposed to be.

Admissions and denials

Every allegation in the statement of claim must be addressed. Under the rules, allegations that are not specifically denied are deemed to be admitted. This makes the response to each paragraph of the claim a consequential decision, not a formality. A defendant who carelessly fails to deny an allegation may find it treated as admitted at trial.

The defendant's version of the facts

Beyond responding to the plaintiff's allegations, a statement of defence sets out the material facts the defendant relies on. This is the defendant's narrative of what actually happened. It should be factually accurate, internally consistent, and detailed enough to give fair notice of the defence without going into evidentiary detail.

Affirmative defences

Some defences must be specifically pleaded or they are waived. These include limitation period defences (arguing the claim was filed too late), contributory negligence, set-off, and any defences based on the terms of a contract. Failing to plead an available defence in the statement of defence can prevent you from raising it later.

Counterclaim

A statement of defence can be combined with a counterclaim. If the defendant has their own claims against the plaintiff arising from the same facts, they can assert those claims in the same document rather than commencing a separate action. Including a counterclaim requires careful drafting but can significantly affect the dynamics of the litigation.

The statement of defence in British Columbia

In BC, the equivalent document is called a response to civil claim, governed by the Supreme Court Civil Rules (BC Reg 168/2009). The name differs but the function is the same: it is the defendant's formal response to the plaintiff's notice of civil claim (the BC equivalent of a statement of claim).

The filing deadline in BC is 21 days after service if the defendant is served in BC, 35 days if served elsewhere in Canada, and 49 days if served outside Canada. As in Ontario, there is a mechanism to extend the time: a defendant can file a disposition of a proceeding notice to signal their intent to respond while seeking more time.

The consequences of not responding are similar to Ontario: the plaintiff can apply for a default judgment. BC courts also have the power to set aside default judgments on motion, subject to demonstrating a reasonable explanation and a meritorious defence.

If you have been served with a notice of civil claim in BC, the same urgency applies as in Ontario. Consult a litigation lawyer in your province immediately.

Common mistakes defendants make

Having handled many civil litigation matters, certain mistakes come up repeatedly when defendants respond to claims without legal assistance.

Waiting too long to seek legal advice

The most common and most damaging mistake. Many defendants initially believe the dispute can be resolved informally and delay consulting a lawyer. By the time they realize litigation is proceeding, the deadline may already have passed or be imminent.

Treating the statement of defence as a letter

A statement of defence is a formal pleading with specific structural and content requirements under the rules. Filing a letter, an email, or an informal document in response to a claim does not constitute a valid statement of defence and will not protect you from being noted in default.

Admitting allegations by omission

Failing to specifically deny each allegation in the statement of claim is treated as an admission. Defendants who selectively address only some paragraphs may inadvertently concede facts that were actually in dispute.

Including evidence instead of facts

Attaching documents, invoices, or photographs to a statement of defence and using them as the substance of the defence is a pleading error. Evidence is exchanged through the discovery process, not through pleadings.

Missing the counterclaim opportunity

Defendants who have their own valid claims against the plaintiff sometimes fail to include them in the statement of defence as a counterclaim. Those claims may have to be pursued in a separate action, adding cost and complexity.

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