PART 4Actions (continued)
Pleadings in an Action (continued)
Marginal note:Pleading law
175 A party may raise any point of law in a pleading.
Marginal note:Conditions precedent
176 (1) The performance or occurrence of a condition precedent to the assertion of a claim or defence need not be pleaded.
Marginal note:Contesting condition precedent
(2) The non-performance or non-occurrence of a condition precedent shall be pleaded.
Marginal note:Documents or conversations
177 A pleading shall briefly describe any document or conversation referred to in the pleading, but need not set out the exact words of the document or conversation unless the words are themselves material.
Marginal note:Alternative claims or defences
178 A party may plead claims or defences in the alternative.
Marginal note:Subsequent facts
179 A party may plead a fact that occurs after the commencement of an action, even though the fact gives rise to a new claim or defence.
Marginal note:Inconsistent pleading
180 A party may plead an allegation of fact, or raise a new ground of claim in a pleading, that is inconsistent with a previous pleading only if the party amends the previous pleading accordingly.
181 (1) A pleading shall contain particulars of every allegation contained therein, including
(a) particulars of any alleged misrepresentation, fraud, breach of trust, wilful default or undue influence; and
(b) particulars of any alleged state of mind of a person, including any alleged mental disorder or disability, malice or fraudulent intention.
Marginal note:Further and better particulars
(2) On motion, the Court may order a party to serve and file further and better particulars of any allegation in its pleading
Statements of Claim
Marginal note:Claims to be specified
182 Every statement of claim, counterclaim and third party claim shall specify
(a) the nature of any damages claimed;
(b) where monetary relief is claimed, whether the amount claimed, exclusive of interest and costs, exceeds $50,000;
(c) the value of any property sought to be recovered;
(d) any other specific relief being claimed, other than costs; and
(e) whether the action is being proceeded with as a simplified action.
183 In a defence or subsequent pleading, a party shall
(a) admit every allegation of material fact in the pleadings of every adverse party that is not disputed;
(b) where it is intended to prove a version of facts that differs from that relied on by an adverse party, plead that version of the facts; and
(c) plead any matter or fact that
(i) might defeat a claim or defence of an adverse party, or
(ii) might take an adverse party by surprise if it were not pleaded.
Marginal note:Deemed denial
184 (1) All allegations of fact in a pleading that are not admitted are deemed to be denied.
Marginal note:Proof not required
(2) Unless denied by an adverse party, it is not necessary that a party prove
(a) its right to claim in a representative capacity; or
(b) its constitution as a partnership, association or corporation.
Marginal note:Effect of denial
185 Where a party alleges an agreement in a pleading, a bare denial of the agreement pleaded by another party shall be construed only as a denial of the making of the agreement or of the facts from which such an agreement may be implied and not as a denial of the legality or legal sufficiency of the agreement.
186 Where a claim to a sum of money, including a sum that is not ascertained, is relied on as a defence to all or part of a claim made by an adverse party, it may be included in a defence as a set-off against the claim, whether or not it is also added as a counterclaim.
Marginal note:Judgment for balance
187 Where judgments in an action and in a counterclaim are given at the same time, the Court may set off the amount of one award against the other, without prejudice as to costs.
Marginal note:Defence of tender
188 Subject to section 31.2 of the Crown Liability and Proceedings Act, a defence of tender before action may not be pleaded unless the defendant has paid into court the amount alleged to have been tendered.
Marginal note:When available
189 (1) A defendant who claims to be entitled to relief against a plaintiff may make a counterclaim instead of bringing a separate action.
Marginal note:Statement of defence and counterclaim
(2) A counterclaim shall be included in the same document as the statement of defence.
Marginal note:Style of cause
(3) A statement of defence and counterclaim shall contain a second style of cause identifying the plaintiff by counterclaim and the defendants to the counterclaim.
Marginal note:Counterclaim may proceed independently
190 A counterclaim may be proceeded with notwithstanding that judgment is given in the action or that the action is stayed or discontinued.
Marginal note:Counterclaim against person not already a party
191 (1) Where a defendant who counterclaims alleges that a person who is not a party to the action is liable to the defendant along with the plaintiff in respect of the subject-matter of the counterclaim, the defendant may join that person as a defendant to the counterclaim.
Marginal note:When counterclaim to be issued
(2) Where a defendant adds a person who is not already a party as a defendant to a counterclaim, the defendant’s statement of defence and counterclaim shall be
(a) issued within the time set out in rule 204 for the service and filing of a statement of defence; and
(b) served on the person and on the other parties within 30 days after it is issued.
Marginal note:Defence to counterclaim
192 (1) A defendant to a counterclaim who is already a party to the action shall defend the counterclaim by serving and filing a defence to counterclaim within 30 days after service of the statement of defence and counterclaim.
Marginal note:Reply and defence to counterclaim
(2) A reply and a defence to counterclaim by a plaintiff against whom a counterclaim has been made shall be included in the same document.
Third Party Claims
Marginal note:Availability as of right
193 A defendant may commence a third party claim against a co-defendant, or against a person who is not a party to the action, who the defendant claims is or may be liable to the defendant for all or part of the plaintiff’s claim.
Marginal note:Where leave of Court required
194 With leave of the Court, a defendant may commence a third party claim against a co-defendant, or against another person who is not a defendant to the action, who the defendant claims
(a) is or may be liable to the defendant for relief, other than that referred to in rule 193, relating to the subject-matter of the action; or
(b) should be bound by the determination of an issue between the plaintiff and the defendant.
Marginal note:Time for third party claim
195 A third party claim against a co-defendant shall be served and filed within 10 days after the filing of the statement of defence.
Marginal note:Third party claim against non-defendant
196 (1) A third party claim against a person who is not already a party to the action shall be
(b) served within 30 days after it is issued.
Marginal note:Copy of pleadings
(2) A third party claim served on a person who is not already a party to the action shall be accompanied by a copy of all pleadings filed in the action.
Marginal note:Time for defence to third party claim
197 (1) A third party shall defend the plaintiff’s claim against the defendant by filing a statement of defence within the time set out in rule 204.
Marginal note:Rights and obligations of third party
(2) A third party defending the plaintiff’s claim against the defendant has the same procedural rights and obligations in the action as the defendant, including those in respect of discovery, trial and appeal.
Marginal note:Hearing of third party claim
198 (1) Unless the Court orders otherwise, a third party claim shall be heard and decided as part of the action from which it arose.
Marginal note:Questions of third party liability
(2) The Court may order the question of liability as between the third party and the defendant to be tried in such a manner, at or after the trial of the action, as is set out in the order.
Marginal note:Order binding on third party
199 (1) A third party is bound by any order or determination made in an action between the plaintiff and the defendant who made the third party claim, whether or not the third party defended the plaintiff’s claim.
Marginal note:Consequences of default of third party defence
(2) A third party who defends neither the third party claim nor the plaintiff’s claim is deemed to admit
(a) the validity of any judgment obtained by the plaintiff against the defendant, including a judgment obtained by consent; and
(b) the third party’s liability to contribute or indemnify to the extent specified in the third party claim.
Marginal note:Leave required to enforce default judgment
(3) A judgment against a third party referred to in subsection (2) shall not be enforced without leave of the Court.
Amendment of Pleadings
Marginal note:Amendment as of right
200 Notwithstanding rules 75 and 76, a party may, without leave, amend any of its pleadings at any time before another party has pleaded thereto or on the filing of the written consent of the other parties.
Marginal note:Amendment to add new cause of action
201 An amendment may be made under rule 76 notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action arises out of substantially the same facts as a cause of action in respect of which the party seeking the amendment has already claimed relief in the action.
Close of Pleadings
Marginal note:Close of pleadings
202 Pleadings are closed
(a) where a statement of defence has not been filed within the period set out in rule 204, on the expiration of that period;
(b) on the filing of a reply; or
(c) on the expiration of the time for filing a reply.
Time for Service of Pleadings
Marginal note:Statement of claim
203 (1) A statement of claim shall be served within 60 days after it is issued.
Marginal note:Proof of service
(2) Proof of service of a statement of claim shall be filed within the time set out in rule 204 for the service and filing of a statement of defence.
204 (1) A defendant shall defend an action by serving and filing a statement of defence within
(a) 30 days after the day on which of the statement of claim is served, if the defendant is served in Canada or the United States; and
(b) 60 days after the day on which of the statement of claim is served, if the defendant is served outside Canada and the United States.
Marginal note:Extension of time
(2) However, if the defendant serves and files a notice of intention to respond in accordance with rule 204.1, the time for serving and filing the statement of defence is extended by 10 days.
Marginal note:Notice of intention to respond
204.1 A defendant who is served with a statement of claim and who intends to respond to the action may, within 10 days after the day on which they are served, serve on the plaintiff and file a notice of intention to respond in Form 204.1.
205 A plaintiff’s reply to a statement of defence shall be served and filed within 10 days after service of the statement of defence.
Marginal note:Documents referred to in pleadings
206 A copy of every document referred to in a pleading shall be served with the pleading or within 10 days after service of the pleading, unless
(a) the party being served waives its right to the copy; or
(b) the Court orders otherwise.
Marginal note:Service of counterclaim where no new party added
207 (1) Where a counterclaim is brought against a plaintiff only, or against only a plaintiff and another party to the action, the statement of defence and counterclaim shall be served and filed within the time set out in rule 204.
(2) Where a defendant to a counterclaim who is also a defendant in the action has failed to file a statement of defence in the action, that defendant shall be served personally with a statement of defence and counterclaim.
Marginal note:No attornment to jurisdiction
208 A party does not attorn to the jurisdiction of the Court by
(a) filing a notice of intention to respond; or
(b) bringing a motion to object to
(i) any irregularity in the commencement of the action,
(ii) the service of the statement of claim,
(iii) the Court as not being a convenient forum, or
(iv) the jurisdiction of the Court.
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