Alberta Statement of Claim: Responding as a Defendant

• After a Plaintiff serves a Statement of Claim, a Defendant has a set time to respond

Time to Respond

• 20 days if served in Alberta
• 1 month if served outside Alberta but in Canada
• 2 months if served outside Canada
• Failure to respond within the time limit may result in losing the case by default

Extension of Filing Deadlines

• It is common to request an extension to file a response to a pleading
• A newly retained lawyer may need more time to familiarize themselves with the case and prepare pleadings
• Even if a lawyer is promptly retained, they may still request an extension to prepare a proper response
• Most lawyers will agree to a reasonable extension as a professional courtesy
• If a filing extension is denied, the party may apply to an Applications Judge in Chambers for a Court Order

Defendant's Response

• A Defendant may ignore the lawsuit either inadvertently or deliberately
• A Defendant with no defence or assets may choose not to respond
• A judgment-proof Defendant is a low-income Defendant with no significant assets making it difficult for the Plaintiff to collect money
• Filing a defence would be pointless for such a Defendant

Defendant's Pleadings

• A Defendant must prepare, file, and serve either a Statement of Defence or a Demand for Notice
• Depending on the lawsuit's facts, additional pleadings may be prepared and served
• Pleadings define the issues in a lawsuit

Statement of Defence

• The Statement of Defence is a crucial pleading that sets out the Defendant's grounds and facts for defence
• The Defendant can formally deny the Plaintiff's allegations in the Statement of Claim
• In a breach of contract lawsuit, the Defendant can argue they did not breach the contract
• The Defendant can admit to the Plaintiff's claims but provide facts that give a valid defence
• If the Plaintiff filed the Statement of Claim after the limitation period, the Defendant can argue that the case should be dismissed
• Legal assistants often assist lawyers in drafting the Defendant's pleadings, especially the Statement of Defence
• Lawyers are ultimately responsible for preparing the Statement of Defence
• General rules for drafting pleadings include setting out sufficient particulars for a valid defence

Rules for Drafting Pleadings

• The pleading must set out enough particulars to establish a valid defence
• Consecutively numbered paragraphs are required
• Dates, numbers, and sums are shown in figures unless the numbers are very large
• The pleading should be as concise as possible, containing only a summary of basic facts
• Precedents are helpful but must be modified to fit the lawsuit's specific facts

Drafting Considerations

• The focus when drafting a Defence should be on the Defendant's case
• There is no need to put information that is helpful to the Plantiff

Features of a Statement of Defence

• Header
• First paragraph
• Remedy sought
• Alternative defences
• Absence of a notice at the end

Header Details

• The header is similar to the Statement of Claim but is titled "Statement of Defence"
• It includes the court file number, like all subsequent documents in the lawsuit
• The information in the header generally does not change after the Statement of Claim is filed, unless changed by Court Order

Denial of Claim

• The first paragraph admits introductory statements from the Statement of Claim
• All other allegations of the Statement of Claim can then be denied
• The Defendant may choose to admit additional facts depending on the lawsuit

Remedy Sought

• The Statement of Defence can only ask for the Plaintiff's lawsuit to be dismissed and for the Plaintiff to pay the Defendant's costs
• Additional remedies require filing a Counterclaim

Alternative Defences

• Including contradictory defences is common and allowed
• In a wrongful dismissal case, a Defendant may deny responsibility and also argue the Plaintiff failed to mitigate losses
• Mitigate means lessen or reduce your losses
• Alternative defenses allow for all possible defences can be raised

Notice Details

• A Statement of Defence does not include a Notice

Demand for Notice

• Used when the Defendant has no defence but wants to be notified of future proceedings to dispute damages
• It preserves the Defendant's right to go to Court and make submissions about damages
• If no document is filed, the Defendant loses the right to be notified and have input on damages

Changing Mind

• A Defendant may initially file a Demand for Notice, then change their mind and want to file a Statement of Defence
• The Defendant must obtain a Court Order if they wish to do this

Request for Particulars

• This is used when the Statement of Claim lacks sufficient details to prepare a defence
• It asks the Plaintiff to provide more information about the Statement of Claim's facts
• It cannot be used to ask for the Plaintiff's evidence
• Is a lawsuit for details regarding negligence

Alberta Rules of Court Timeline

• A party served with a Request for Particulars has 10 days to file and serve a Reply to Request for Particulars
• Failure to meet the deadline allows the requesting party to apply for a Court Order
• Refusal to provide particulars can occur if the pleading has sufficient details or if it is abuse by dragging out the lawsuit
• Disputes are resolved in Court, which will make an Order

Counterclaim

• It denies the Plaintiff's allegations
• It starts the Defendant's own lawsuit
• The Defendant seeks remedies from the Plaintiff
• A Statement of Defence must be filed with a Counterclaim to defend against the claim
• In a breach of contract lawsuit, the Defendant may file a Statement of Defence and a Counterclaim for damages
• The Statement of Defence denies the breach
• The Counterclaim claims the Plaintiff breached the contract

Documentation

• The Statement of Defence and Counterclaim are separate documents
• The Statement of Defence denies allegations
• The Counterclaim asserts a claim against the Plaintiff
• Actions can be heard at the same time but are considered separate

Features of the Counterclaim

• Parties' names are reversed in the Statement of Defence and Counterclaim reflect the counterclaim's purpose
• In the Statement of Defence, the Defendant becomes the Plaintiff by Counterclaim
• The Plantiff in the Statement of Defence becomes the Defendant in the CounterClaim
• The remedy sought is for the original Plaintiff's action to be dismissed with costs
• In the Counterclaim, the remedy will seek damages as well as interests and costs

Contents

• A Counterclaim will contain notice to the Defendant similar to the Statement of Claim
• A response to the Counterclaim must be made or deadlines must be met
  • 20 days if served in Alberta
  • 1 month if served outside Alberta but in Canada
  • 2 months if served outside Canada
• A Plaintiff by Counterclaim has a valid course of action against people in the original lawsuit

Suing People

• The Alberta Rules of Court allow a Counterclaim to be brought against not only the Plaintiff, but also against other people
• The original Plaintiff must also be sued with the new parties
• The third party must respond within a deadline, unless an extension to deadline has been received
• A Third party can file a Demand for Notice, a Statement of Defence to Counterclaim, a Request for Particulars, or even a Third Party Claim

Third Party Claim

• It is used when the Defendant believes another party contributed to the Defendant's wrongdoing
• The defendant is seeking party to "share to blame" with the defendent
• It requires the other party to help pay the Plaintiff's judgment against the Defendant

Timing

• The timeline for filing and serving a Third Party Claim differs from other pleadings
• Third Party Claims must be filed and served within six months of filing the Statement of Defence or Demand for Notice
• A copy of the Statement of Claim must be served along with the Third Party Claim
• The Third Party has a vested interest in helping the Defendant fight the lawsuit

Respond

• The Third Party has the same deadlines to respond
  • 20 days if served in Alberta
  • 1 month if served outside Alberta but in Canada
  • 2 months if served outside Canada
• The Third Party can do nothing (losing by default), file a Demand for Notice, file a Statement of Defence to Third Party Claim, file a Request for Particulars, file a Third Party Claim, or file a Notice of Claim Against Co-Defendant

Notice of Claim Against Co-Defendant

• It allows a Defendant to share the blame for wrongdoing with another individual
• They would look to the other party in the lawsuit to help defend and to pay
• It allows one Defendant to seek indemnity or contribution

Indemnity or Contribution

• This arises through the other Defendant's own wrongdoing or contributory negligence
• Statutes include the Tort-feasors Act or the Contributory Negligence Act
• The Third Party Claim is designed to allow a Defendant in a lawsuit to seek indemnity or contribution from an entirely new party to the lawsuit

Documents

• The Notice of Claim Against Co-Defendant must be filed and served within 20 days after filing the Statement of Defence or Demand for Notice
• The Plaintiff's Statement of Claim does not need to be included
• There is no pleading in response to the Notice of Claim Against Co-Defendant

Filing the Defendant's Pleadings

• The legal assistant must arrange for pleadings to be filed at the courthouse and served
• Filing is similar to filing the Plaintiff's pleadings
• The legal assistant makes copies and arranges for a court runner to file them
• Filing fees exist for some pleadings

Filing Fees

• Statement of Defence: $50.00
• Counterclaim $150.00
• Third Party Claim $150.00

Arrangement

• The court clerk stamps the pleadings and keeps one copy
• The court runner brings back the remaining copies
• The legal assistant arranges for service of the pleadings on the Plaintiff