Defendant's Claim in the Ontario Small Claims Court

What a Defendant's Claim is

A Defendant's Claim is the Small Claims Court's combined counterclaim, cross-claim and third-party claim. A defendant who has been sued can use it to make a claim against (i) the plaintiff, (ii) a co-defendant, or (iii) a person who is not already a party to the action but who is or may be liable in respect of the plaintiff's claim.

The 20-day filing window under Rule 10.01

Rule 10.01 provides that a Defendant's Claim (Form 10A) may be issued within 20 days after the day the Defence is filed, or after that period but before trial or default judgment with leave of the court. Leave is a discretionary decision - it is not automatic - and the Rules do not prescribe a fixed multi-factor test for granting it.

Monetary jurisdiction still applies

The $50,000 monetary limit under section 23 of the Courts of Justice Act applies to the Defendant's Claim in the same way it applies to any Small Claims Court claim. Where the Defendant's Claim exceeds the limit, the defendant must either abandon the excess or bring the claim in the Superior Court, which may in turn affect where the whole action is heard.

Service and Defence to the Defendant's Claim

A Defendant's Claim is served on the responding parties in the same way as a Plaintiff's Claim. Each responding party then has 20 days to file a Defence under Rule 9.01. Bringing in a non-party through a Defendant's Claim is often the correct way to make sure everyone potentially responsible for the plaintiff's claim is in the same proceeding.

Set-off is not the same thing

A defendant can plead set-off within a Defence without filing a Defendant's Claim, but set-off can only reduce or extinguish the plaintiff's claim - it cannot produce a positive money judgment against the plaintiff. To recover a net amount from the plaintiff, or to obtain judgment against a third party, a Defendant's Claim is required.