Chapter 6: Acting for the Defendant

Options defendant has

dispute the entire claim

admit liability of the entire claim

admit liability for part of the claim

Schedule A of a defence should begin with

admissions

denials

alternative versions of facts

After the admissions, denials, alternate versions, the defence then has

numbered paragraphs setting out allegations of fact the defendant relies on

Admissions, partial admissions, denials, partial denials, no knowledges, do NOT

constitue an affirmative defence

Affirmative defence is intended to convince the court that

a defendant did not cause the harm alleged by the plaintiff

a defendant only caused part of the harm alleged by the plaintiff

Expiry of a limitation period is an __ to commencing a plaintiff’s claim or a defendant’s claim

absolute bar

T/F: a limitations defence is an affirmative defence

true

T/F: a limitation defence will be automatically considered by the judge

false, it must be specifically pleaded

Under Rule 3.02, paralegal shall - and - a client to - or - a dispute whenever possible to do so on a - basis, and shall - client from commencing or continuing - legal proceedings

advise and encourage

compromise or settle

reasonable basis

discourage

Two forms of settlement payment

lump sum

periodic

If a defendant does not dispute a dependant’s proposal to the terms of settlement within 20 days after service, the proposal is - and defendant is -

deemed to be accepted

required to make payments as if the proposal were a court order

If defendant defaults on any payment, plaintiff may then

serve defendant with notice of default of payment

Notice of default of payment is form

Form 20L

Once defendant is served with notice of default payment, they must respond in -

15 days from date of service

If defendant does not pay within 15 days of being served notice of default payment, plaintiff may file - which is Form -

affidavit of default of payment

Form 20M

Affidavit of default of payment states

defendant failed to make payment in accordance with the proposal

amount paid by defendant and unpaid balance

15 day shave passed since service of notice

Once affidavit of default and affidavit of service of notice are filed, the clerk shall

sign judgment for unpaid balance of undisputed amount

How does a plaintiff dispute a defendant’s proposal of terms of payment

filing request to clerk for a terms of payment hearing within 20 days after service of the defence

Who schedules the terms of payment hearing

the clerk

When is a defendant’s claim used

when defendant sues the plaintiff

Counter claim

claim made by defendant back over against a plaintiff

Cross claim

claim made by a defendant over against a co-defendant

Third-party claim

claim made by defendant against a person not named in the plaintiff’s claim

Defendant’s claim must be filed within - of when

20 days of date on which defence is filed

after the 20 days but before trial or default judgment with leave

An admission by defendant of certain allegations of fact (is or is not) admission of liability

IS NOT

Denying or stating alternatives versions (does or does not) constitute a defence

does not

Affirmative defences

defendant’s legal grounds for disputing the claim

In a defendant’s claim, defendant becomes

plaintiff by defendant’s claim

In a defendant’s claim, plaintiff becomes

defendant by plaintiff’s claim

Why would a defendant’s claim NOT be tried with plaintiff’s claim

it will complicate or delay trial of plaintiff’s claim

cause undue prejudice to any party

If the judge deems defendant’s claim should not be tried with plaintiff’s claim, court will order - or direct that

separate trials

direct that defendant’s claim proceed as separate action

Amend

change or correct pleading with intent to improve or make more complete

Additions shall be _ on the pleadings and deletions or other changes shall be -

underlined

clearly identified

Amended pleading must be

marked amended and filed with the clerk

served on all parties at least 30 days before trial

Court may strike out or amend all or part of a document if

it discloses no reasonable cause of action or defence

it may delay or make it difficult to have a fair trial, is inflammatory, waste of time, nuisance, or abuse of process