Rule 9 – Defence

Defence

9.01 A defendant who wishes to dispute a plaintiff’s claim shall, within 20 days of being served with the claim,

(a) serve on every other party a defence (Form 9A); and

(b) file the defence, with proof of service, with the clerk. O. Reg. 44/14, s. 5.

Contents of Defence, Attachments

9.02 (1) The following requirements apply to the defence:

1. It shall contain the following information:

i. The reasons why the defendant disputes the plaintiff’s claim, expressed in concise non-technical language with a reasonable amount of detail.

ii. If the defendant is self-represented, the defendant’s name, address and telephone number, and fax number if any.

iii. If the defendant is represented by a representative, that person’s name, address and telephone number, and fax number if any, and Law Society of Upper Canada registration number if any.

2. If the defence is based in whole or in part on a document, a copy of the document shall be attached to each copy of the defence, unless it is unavailable, in which case the defence shall state the reason why the document is not attached. O. Reg. 461/01, s. 11; O. Reg. 78/06, s. 18; O. Reg. 56/12, s. 2; O. Reg. 230/13, s. 12.

(2) Revoked:  O. Reg. 78/06, s. 19.

Admission of Liability and Proposal of Terms of Payment

9.03 (1) A defendant who admits liability for all or part of the plaintiff’s claim but wishes to arrange terms of payment may in the defence admit liability and propose terms of payment.  O. Reg. 258/98, r. 9.03 (1).

Where No Dispute

(2) If the plaintiff does not dispute the proposal within the 20-day period referred to in subrule (3),

(a) the defendant shall make payment in accordance with the proposal as if it were a court order;

(b) the plaintiff may serve a notice of default of payment (Form 20L) on the defendant if the defendant fails to make payment in accordance with the proposal; and

(c) the clerk shall sign judgment for the unpaid balance of the undisputed amount on the filing of an affidavit of default of payment (Form 20M) by the plaintiff swearing,

(i) that the defendant failed to make payment in accordance with the proposal,

(ii) to the amount paid by the defendant and the unpaid balance, and

(iii) that 15 days have passed since the defendant was served with a notice of default of payment.  O. Reg. 258/98, r. 9.03 (2); O. Reg. 78/06, s. 20 (1).

Dispute

(3) The plaintiff may dispute the proposal within 20 days after service of the defence 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.  O. Reg. 78/06, s. 20 (2).

(4) The clerk shall fix a time for the hearing, allowing for a reasonable notice period after the date the request is served, and serve a notice of hearing on the parties.  O. Reg. 258/98, r. 9.03 (4).

Manner of Service

(4.1) The notice of hearing shall be served by mail or fax.  O. Reg. 330/02, s. 8 (1).

Financial Information Form, Defendant an Individual

(4.2) The clerk shall serve a financial information form (Form 20I) on the defendant, together with the notice of hearing, if the defendant is an individual.  O. Reg. 78/06, s. 20 (3).

(4.3) Where a defendant receives a financial information form under subrule (4.2), he or she shall complete it and serve it on the creditor before the hearing, but shall not file it with the court.  O. Reg. 78/06, s. 20 (3).

Order

(5) On the hearing, the referee or other person may make an order as to terms of payment by the defendant.  O. Reg. 258/98, r. 9.03 (5); O. Reg. 78/06, s. 20 (4).

Failure to Appear, Default Judgment

(6) If the defendant does not appear at the hearing, the clerk may sign default judgment against the defendant for the part of the claim that has been admitted and shall serve a default judgment (Form 11B) on the defendant in accordance with subrule 8.01 (4).  O. Reg. 78/06, s. 20 (5).

(6.1) Revoked:  O. Reg. 78/06, s. 20 (5).

Failure to Make Payments

(7) Unless the referee or other person specifies otherwise in the order as to terms of payment, if the defendant fails to make payment in accordance with the order, the clerk shall sign judgment for the unpaid balance on the filing of an affidavit by the plaintiff swearing to the default and stating the amount paid and the unpaid balance.  O. Reg. 258/98, r. 9.03 (7).