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 single mechanism for what other courts split into counterclaims, crossclaims and third-party claims. Rule 10.01(1) sets out who a defendant may claim against: the plaintiff; any other person, where the claim arises out of the transaction or occurrence relied upon by the plaintiff or is related to the plaintiff's claim; or the plaintiff and another person on that same basis. A co-defendant and a person who is not yet a party both fall under the "any other person" branch, and in either case the claim must meet one of those two connection tests.

The 20-day issuing window under Rule 10.01(2)

Rule 10.01(2) provides that the Defendant's Claim shall be in Form 10A and may be issued within 20 days after the day on which the defence is filed, or after that time 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. The clerk issues the claim, assigns it the same court file number as the Plaintiff's Claim, and files it in the court file.

Rule 9.01 and Rule 10.03 are two different defence deadlines

These are frequently confused, and they are not the same rule.

• Rule 9.01 - Defence to the Plaintiff's Claim. A defendant who is served with a Plaintiff's Claim and wishes to dispute it serves and files a defence in Form 9A within 20 days after service of the Plaintiff's Claim.
• Rule 10.03 - Defence to the Defendant's Claim. A party who wishes to dispute the Defendant's Claim, or a third party who wishes to dispute the plaintiff's claim, shall, within 20 days after service of the Defendant's Claim, serve a defence in Form 9A on every other party and file it with proof of service with the clerk.

Both periods are 20 days, but they start from different events and apply to different documents. Service of the Defendant's Claim is governed by Rule 10.02, which applies subrules 8.01(1) and (2) to service on every person against whom the claim is made.

Why a third party may want to defend the plaintiff's claim

Rule 10.04(3) provides that where the defendant alleges in a Defendant's Claim that a third party is liable to the defendant for all or part of the plaintiff's claim, the third party may contest the defendant's liability to the plaintiff at trial only if the third party has filed a defence in accordance with Rule 10.03. That is the practical reason Rule 10.03 gives a third party the ability to dispute the plaintiff's claim, not just the Defendant's Claim.

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.

How the rest of the Rules apply

Under Rule 10.05(1), the Rules apply with necessary modifications to a Defendant's Claim as if it were a Plaintiff's Claim, and to a defence to a Defendant's Claim as if it were a defence to a Plaintiff's Claim. Rule 10.05(2) is the exception: where a person against whom a Defendant's Claim is made is noted in default, judgment against that person may be obtained only in accordance with Rule 11.04. Rule 10.04(1) requires the Defendant's Claim to be tried and disposed of at the trial of the action unless the court orders otherwise, and Rule 10.04(2) lets the court order separate trials where the Defendant's Claim would unduly complicate or delay the trial or cause undue prejudice.

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 another person, a Defendant's Claim is required.

Three contrasting situations

Fictional teaching examples - not legal authority.

Against the plaintiff only. A defendant sued for unpaid fees files the Defence and, within the ordinary 20-day period after filing, issues a Defendant's Claim against the same plaintiff for the cost of correcting the work. Issuance, service and the defence to that claim are three separate steps with three separate dates.

Bringing in someone who is not a party. The defendant wants to claim over against a supplier who is not in the action. That is available in principle, but the person must be properly named and served, and the claim must be connected to the Plaintiff's Claim in the way the Rules require. Whether that connection exists on your facts is a legal question.

Late, and needing leave. The ordinary period has passed. A Defendant's Claim may still be issued after that time, but only with leave of the court, obtained before trial or before default judgment. Leave is not automatic and depends on the explanation, the stage of the proceeding and prejudice to the other parties.

Common mistakes

• Counting the issuing period from service of the Plaintiff's Claim rather than from the filing of the Defence.
• Treating issuance as service, and letting the service window lapse afterwards.
• Assuming the two claims automatically net off. Each must be proved.
• Missing that a defence to the Defendant's Claim runs from service of that claim, under Rule 10.03.
• Assuming a late claim can simply be filed without leave.
• Naming a person with no connection to the Plaintiff's Claim.

What this guide cannot determine

• Whether your claim is legally connected to the Plaintiff's Claim.
• Whether it is viable, or whether it is timely under any limitation statute.
• Whether it falls within the court's jurisdiction on your facts.
• Whether bringing it is strategically advisable, or whether leave would be granted.
• Who may properly be named as a party in your particular case.

Practical next steps

• Work out the dates with the Defendant's Claim and Counterclaim Estimator and the Ontario Small Claims Court Deadline Calculator.
• Confirm the Defence filing date from the court file, not from memory.
• Read the current Form 10A and the ministry guidance on replying to a claim.
• Get legal advice before naming a non-party, and before relying on leave.