How to Defend a Civil Lawsuit

A civil lawsuit is the legal process for resolving a civil dispute between private parties using the traditional court system. The subject matter of the dispute could be a personal injury claim, a claim for breach of contract, a landlord and tenant dispute, a workplace dispute, and much more. Prior to defending a lawsuit, you should speak to a litigation lawyer. A lawyer knows and understands the law along with the litigation process, therefore can assist you in all stages of the civil dispute.

How does a civil lawsuit begin?

The aggrieved party commences a civil lawsuit by filing, issuing, and serving a Statement of Claim containing a summary of facts, allegations of wrongful conduct and remedies pleaded.

The aggrieved party may request the Court for remedies such as monetary and non-monetary damages, injunctive relief, specific performance of a contract, restitution for unjust enrichment or some other declaratory relief. The defending party to a civil lawsuit responds to the allegations raised in the statement of claim by filing and serving their statement of defence. This article will explain how you can defend a civil lawsuit.

 

1. Prepare And File a Strong Defence

In the statement of defence, you should deny every allegation of fact you wish to dispute. This is because every allegation of fact not denied in a statement of defence is deemed to be admitted.  An allegation of fact could be the start date of a contract or allegations of verbal commitments.

While preparing your defence, you should focus on responding fully to the allegations made in the statement of claim and presenting your version of facts.

For instance, if a former employee alleges constructive dismissal in their statement of claim, the employer can respond to the allegations by showing the Court that the employee voluntarily resigned from their position by submitting a resignation letter and signing a release.

You should also include any technical defences applicable to the facts and circumstances of your case.  For instance, a civil claim must be brought within two years from the day the claim was discovered or reasonably should have been discovered. If the person bringing the claim files it outside the limitation period, you can request the court to dismiss the civil dispute on the grounds of delay.

In such cases, the party bringing the claim now has the burden of proving they had a good reason for not filing the claim within the prescribed limitation period.

The Ontario Rules of Civil Procedure (Rules) specify time periods for filing and serving documents or taking certain steps. The consequences of not delivering and filing documents within the time prescribed in the Rules can be severe.

For instance, the defending party – after being served with a claim – has a prescribed period of time to file their own defense in response.

The defending party might be noted in default if they fail to file their defence within the time limit mentioned in the Rules. In such an event, you could be found liable for everything being claimed by the party bringing the lawsuit with no chance to defend yourself.  You may still attempt to set aside the default judgment, but such processes are onerous, tricky, and best to be avoided altogether.

 

2. Crossclaim, Counterclaim and Third-Party Claim

Counterclaim

A counterclaim avoids multiplicity of lawsuits where the defending party also has a claim against the party filing the lawsuit. A counterclaim is included in the same document as the statement of defence. The title of the pleading is “Statement of Defence and Counterclaim.”

The counterclaim allows both parties to save time and money by litigating their interests in a single lawsuit. The counterclaim allows the defending party to assert any right or claim against the person bringing the action. The defending party can also claim indemnity or contribution under the  Negligence Act (Act) from the plaintiff in respect of another party’s claim against the defending party.

The defending party who counterclaims may join as a defendant to the counterclaim any other person, who is a necessary or proper party to the counterclaim. In a counterclaim, the defending party sues the plaintiff back for any claim they have against the plaintiff arising from the same transaction. For example, if a party to a contract brings a claim for breach of contract against their business partner, the business partner can sue them back by filing a counterclaim for any claim they may have against the plaintiff arising from the same contract. If the defending party is successful in their counterclaim, it may reduce the damages they owe to the party bringing the claim.

 

Crossclaim

A crossclaim allows the defending party to file a claim against another defending party who:

  1. Is or may be liable to the defending party for the entire or part of the suing party’s claim.
  2. Is or may be liable to the defending party for an independent claim for damages or other relief arising from:
  • The transaction, or occurrence or, series of transactions or occurrences involved in the main action; or
  • A related transaction, or occurrence, or series of transactions or occurrences.
  1. Should be bound by the determination of an issue between the suing party and the defending party.

Further, the defending party must claim contribution from a co-defendant under the Negligence Act by way of cross claim.

By filing a crossclaim, a defending party essentially says they are not liable – or not fully liable – to the person bringing the claim. If the court grants a judgment in the suing party’s favour, then the other defendant must pay alongside, or instead of, the defending party.

 

Third-Party Claim

A third-party claim is a claim by a defendant against a stranger to the litigation. Someone who is not already a party to the main action.

In a third-party claim, the defendant takes a position in the main action that they are not liable – or not fully liable – to the plaintiff. However, if they are found to be liable, the third party must pay alongside, or instead of, the defendant.

In conclusion, counterclaims, crossclaims and third-party claims enable the defendant to ward off some, if not all, the liability. Which will result in reducing the amount they may have to pay in a civil lawsuit. All these claims are highly technical, and any mistake in a pleading makes you vulnerable to any liability.

However, if pleaded correctly, these claims can push the plaintiff on the back foot, and they will have to defend themselves. A litigation lawyer will assess your case and will file a counterclaim, crossclaim or a third party claim on your behalf where applicable.

3. Motions

A motion is a “proceeding within a proceeding.” It is a subsidiary step taken within either an action or an application to determine various issues between the parties. Pre-trial motions can strengthen your defence or even dismiss the suit before the trial.

Trials are expensive, and bringing the right motion at the right time can save time and money. A litigation lawyer knows which motions to bring in court to move the case towards its earliest conclusion.

 

Motion for summary judgment

A motion to the court for summary judgment allows the court to decide a matter at an early stage. In this motion, the court must be convinced that the plaintiff can produce no, or insufficient, evidence to support the allegations made in its statement of claim.

The granting of summary judgment on a motion will dispose of a matter without the need for a full trial.

 

Motion to strike out all or part of the plaintiff’s claim

A defendant can move to dismiss all or part of the plaintiff’s claim after delivering a statement of defence on the ground that it discloses no reasonable cause of action.

For example, if a plaintiff names a corporation director as a defendant in a claim for breach of contract by the corporation, but the plaintiff does not claim the director was acting outside the scope of his duties or committed a personal breach of duty, then the director can bring a motion to strike out the proceedings against him as no separate cause of action lies against them under Canadian Law.

 

Stay or Dismissal of Action

The defendant in a civil dispute may also move before a judge to have an action stayed or dismissed if they can prove by affidavit or other evidence that:

  • The court has no jurisdiction over the subject matter of the dispute.
  • The plaintiff or defendant don’t have the legal capacity to sue or be sued.
  • Another proceeding is pending in Ontario or another jurisdiction between the same parties about the same subject matter.
  • The action is frivolous or vexatious or is otherwise an abuse of the process of the court.

All the motions described above can shorten and simplify the case considerably. Accordingly, you can expect the plaintiff to defend them aggressively.  For this reason, it is better to get a litigation lawyer to bring the motions on your behalf.

If served with a civil claim, you should contact a litigation lawyer as soon as possible. They will help you prepare your defence and advocate on your behalf in court.

A litigation lawyer knows how to respond to the allegations raised by the plaintiff to get the claim dismissed. They will help you explain how the plaintiff’s allegations are without merit and justify your actions where possible.

 

Conclusion

Defending a claim is crucial if you are involved in a civil dispute. If you choose not to file a defence, you could be noted in default and essentially admit to the court that the plaintiff is correct in their claim. The court may impose hefty costs on you if you fail to defend the claim.

Therefore, hiring a litigation lawyer to defend a claim on your behalf is an investment you should seriously consider. A lawyer will be able to:

  •  devise a litigation strategy for you
  • advise you on your case
  • explain the steps in defending against the claim, and
  • represent you through the lawsuit process.

 

Contact Us

If you are a defendant in a civil lawsuit and need any help in preparing your defence and representing you before the court, our skilled, knowledgeable, and experienced lawyers at Achkar Law can help. Contact us by phone toll-free at 1-800-771-7882  or email us at [email protected], and we will be happy to assist.

If you are a small or medium-sized company looking for full-service support, check out our Chief Legal Officer (CLO) program page for our strategic solutions.

 

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