Insights & Articles
My Lawyer Said She Is Issuing a Statement of Claim – What Does That Mean?
Your personal injury action is formally commenced by issuing a Statement of Claim at the Court. The document itself starts with the title of proceedings, which identifies the names of the parties to the action.
In terms of the content, your claim will start with a statement outlining the relief sought (known as the ‘prayer for relief’). It is important to note that the dollar amounts listed at the outset are not the actual assessment of your actual losses. The amounts claimed in the prayer for relief are made for a number of strategic reasons, and to ensure that every possible outcome you may experience is covered (i.e., the ‘worst case’ scenario).
The next section of the claim includes a description of the parties to the action (those individuals and entities who are listed in the title of proceedings). As the injured party, you are the Plaintiff. In some instances your family members, although not injured, may also have viable claims under the Family Law Act. Those claims would be for the loss of care, guidance and companionship they once received from you but which has been impacted due to your injuries, as well out of pocket expenses incurred for your benefit (such as attendant care) or income losses. Your family members are also called Plaintiffs.
The Defendants are the persons or entities whom you are suing for your losses. In a motor vehicle collision case, for example, that would include the driver of the other vehicle and the owner of the other vehicle if different from the driver.
The Statement of Claim contains a description of the incident in which you were injured, as well as descriptions about your injuries and your losses. These are generally done in broad terms.
The claim also contains allegations of negligence are made against the Defendants. Many allegations of negligence will often be pled. For example, a standard allegation of negligence against a driver who caused the collision will be that he or she was distracted by texting, eating, talking on the phone, etc.; or the driver may have had impaired judgment due to drugs, alcohol, medication or sleep deprivation. These allegations may or may not actually have been the case; however, a long list of allegations covering all possible acts of negligence allows your lawyer to ask those questions of the Defendant at the examination for discovery.
The purpose of the Statement of Claim, therefore, is to provide notice to the Defendant(s) of the claim and its basis. The claim must be personally served on the Defendant(s) within six months of being issued. That time may be extended with leave of the Court.
Your lawyer may or may not provide you with a copy of the Statement of Claim. Many lawyers do not provide their clients with copies of the claim. One reason is that the lawyer for the Defendant may attempt to cross-examine the Plaintiff on the contents of the claim at trial. If the client has not seen the claim, then that attempt at cross-examination fails.
What happens next? Once the claim is served, the Defendant(s) must serve and file with the Court their own pleading, called the Statement of Defence.
The Statement of Defence starts with a list of the statements and allegations set out in the Statement of Claim with which the Defendant agrees; a list of the statements and allegations with which the Defendant does not agree; and a list of the statements and allegations of which the Defendant has no knowledge.
The Statement of Defence typically will contain allegations against the Plaintiff. Such allegations may include, for example, that the Plaintiff was distracted when in the injury occurred (i.e., texting while driving or walking); that the Plaintiff failed to take appropriate safety precautions to minimize the effect of any incident (i.e., wearing inappropriate footwear in a slip and fall case; or failing to wear a helmet as a cyclist; or failing to wear a seatbelt in a motor vehicle, for example); or that the Plaintiff has failed to take appropriate steps to mitigate his or her losses (i.e., has not participated in recommended treatment, etc.)
Defendants can also include a Counterclaim (either against the Plaintiff or against a party who ought to have been named as a defendant), or issue a Third Party Claim (adding parties who may be responsible). Counterclaims and Third Party Claims must also be defended by the parties involved.
Claims, defences, counterclaims and third party claims are all collectively known as “pleadings”. Once the pleadings stage is closed, the parties move on to the next, very important step in the litigation, known as discovery. We will explain the discovery process in an upcoming blog. Stay tuned…
If you or a loved one has been injured, please contact Judith Hull, an experienced personal injury lawyer at McKenzie Lake Lawyers.
This blog was written by Lawyer Judith Hull and Jonathan Gross, a summer student at McKenzie Lake Lawyers.