Pleadings Flashcards
What is a pleading?
A formal written statement that establishes the LEGAL FRAMEWORK for the claim/defence in an action and provides the supporting facts
A pleading contains
allegations that have not been proven or tested in court
Under the Rules of the Small Claims Court, what are the three pleadings?
- plaintiff’s claim (Rule 7)
- defence (Rule 9)
- defendant’s claim (Rule 10)
A pleading must set out the
material facts that are needed to establish a cause of action or a defence
Knowledge may be alleged as a fact without
pleading the circumstances from which it is to be inferred
It may not be necessary to plead matters of which the court will take judicial notice, including:
- general law
- Acts of Parliament and provincial legislature
- Royal Proclamations
Parties may plead inconsistent allegations provided that they are not
shams or wholly fictitious, and it is made clear that the allegations are pleaded in the alternative
What are the required elements of a plaintiff’s claim?
- parties names and their capacities, if relevant
- nature of the claim and supporting material facts
- the facts establishing jurisdiction
- issues or questions to be determined by the court
- the amount of the claim and the relief sought
- applicable law and any relevant statutes
- request for costs and prejudgement and postjudgement interest
- does NOT anticipate possible defences
Pleadings should be divided into
consecutively numbered paragraphs, each allegation in its own paragraph
- first paragraph identifies the nature of relief sought
- second and following paragraphs identify the relevant parties and their capacities
- remaining paragraphs state the allegations and material facts that give rise to the cause of action
What are damages?
The amount of money that is claimed or is ordered to be paid to a person as compensation for loss or injuries
As of January 1 2020, the maximum amount of damages that can be awarded in the Small Claims Court is
$35,000
special/pecuniary damages are
to compensate a plaintiff for a quanitifiable monetary loss
general/non-pecuniary damages are
for non-monetary losses suffered by a plaintiff, like pain and suffering, disfigurement, mental distress, loss of enjoyment of life, loss of amenities
compensatory/actual damages are
for the actual loss sustained by the plaintiff, that will effectively place the plaintiff in the situation that it would have been in had the wrong not occured (tort) or had the contract been performed (contract)
What are aggravated damages?
damages in recognition of, and to compensate a plaintiff for, suggering intangible damages such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, and wounded pride because of the defendant’s actions. intended to COMPENSATE for the aggravation of the injury
What are punitive (exemplary) damages?
non-compensatory damages to punish the defendant for its shockingly harsh, vindictive, reprehensible or malicious behaviour
What are liquidated damages?
damages agreed on by the parties entering into a contract, to be paid by a party who breached the contract to a non-breaching party
what are nominal damages?
token damages awarded by the court to redress a violation of a legal right that the law deems necessary to protect even if there is no actual harm or loss or proof of harm or loss
What principles apply when determining how much compensation may be awarded?
- foreseeability
- remoteness
- duty to mitigate
If particulars are not available at the time the claim is issued, they should be provided as soon as possible to the defendant, and supporting documents must be provided
at least 14 days before the settlement conference
The prescribed fee for a plaintiff’s claim is payable and due to
the Minister of Finance at the time the claim is filed
The defence is to be set out in form
9A
The defence must state
- reasons why the defendant disputes the plaintiff’s claim
- contact information for the defendant and legal rep
The initial paragraphs of a defence
admit every allegation of fact that is not denied, deny those allegations that they dispute, and state a lack of knowledge of those allegations of which they have no knowledge
if the defendant is disputing jurisdiction under RUle 6, this must be
specifically pleaded with the relevant material facts
Special defences and the material facts that give rise to them must be
specifically pleaded
The Statute of Frauds must be pleaded, it requires that
parties to certain contracts put their agreement in writing to make the contract enforceable. In Ontario, applies to contracts for the sale or disposition of land and many guarantees
What other defences must be pleaded?
- the limitations act 2002
- lack of notice
- lack of status or capacity to sue
- illegality
- estoppel
- res judicata-preventing re-litigation of matters that have already been determined.
- contributory negligence
- act of a third party
- non est factum
- fraud
- misrepresentation
- want of authority
- insanity
- not qualified
- accord and satisfaction
- settled account
- surrender
- waiver
- equitable defences (ask the court to excuse behaviour because the party bringing the action has behaved in some inequitable way)
- purchaser for value without notice
- non performance of a condition
what is estoppel?
a rule of evidence that prevents one from alleging or denying a fact because of one’s own previous actions or words to the contrary
What are the three elements of issue estoppel?
- the same issue was decided in an earlier proceeding
- the earlier proceeding resulted in a final decision
- the same parties (or their privies) were involved in the earlier proceeding
What are the elements of cause of action estoppel?
prevents a cause of action from being reheard where the parties’ legal rights and liabilities have been previously finally determined by a court or tribunal. Applies where the issue should have been raised in the earlier proceeding
What are the elements of the defence of non est factum (not my deed)?
- the defendant signed the document while mistaken about its nature and character
- the mistake was the result of a misrepresentation
- the defendant was not careless in signing (Bulut v Carter)
What is the concept of the defence of accord and satisfaction?
a concept in contract law regarding the purchase of a release from a debt. Payment made> amount owed and does not reflect the actual performance of the original obligation
What is the defence of purchaser for value without notice?
a bona fide purchaser who has purchased an asset for value not having any notice of any facts that would cast doubt on the seller’s right to have sold it in good faith
Subrule 9.03(1) permits the defendant to file a defence in which they admit liability for part or all of the plaintiff’s claim and propose payment terms. if the plaintiff does not dispute the proposal within
20 days, the plaintiff is deemed to have accepted it and the defendant shall make payments in accordance with the proposal
The plaintiff may dispute a defendant’s proposed terms by
filing with the clerk and serving on the defendant a request to clerk (Form 9B) for a terms of payment hearing before a referee or other person appointed by the court
What form is a default judgement?
Form 11B
The defendant must serve its defence on every other party and file with the clerk within
20 days of being served with the claim
What form is a defendant’s claim?
Form 10A, aka D1
A defendant’s claim may be issued within
20 days after the day on which the defence is FILED.
A third party who wishes to dispute the defendant’s claim must
within 20 days after the service of the defendant’s claim:
- serve on every other party a defence (Form 9A), - file the defence with proof of service with the clerk, and
- pay the prescibed fee
