Federal Courts Rules (SOR/98-106)

Counterclaims

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

  • (a) issued within the time set out in rule 204 for the service and filing of a statement of defence; and

  • (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.

Marginal note: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.

Marginal note:Reply

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.

• Marginal note:Exception

  (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.

Preliminary Matters

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.

209 [Repealed, SOR/2021-246, s. 9]

Default Proceedings

Marginal note:Motion for default judgment

• 210 (1) Where a defendant fails to serve and file a statement of defence within the time set out in rule 204 or any other time fixed by an order of the Court, the plaintiff may bring a motion for judgment against the defendant on the statement of claim.

• Marginal note:Motion in writing

  (2) Subject to section 25 of the Crown Liability and Proceedings Act, a motion under subsection (1) may be brought ex parte and in accordance with rule 369.

• Marginal note:Affidavit evidence

  (3) A motion under subsection (1) shall be supported by affidavit evidence.

• Marginal note:Disposition of motion

  (4) On a motion under subsection (1), the Court may

  • (a) grant judgment;

  • (b) dismiss the action; or

  • (c) order that the action proceed to trial and that the plaintiff prove its case in such a manner as the Court may direct.

Marginal note:Service pursuant to order for substitutional service

211 Judgment shall not be given against a defendant who is in default where service of the statement of claim was effected pursuant to an order for substitutional service, unless the Court is satisfied that it is just to do so having regard to all the circumstances.

Marginal note:Service pursuant to Hague Convention

• 212 (1) Where a statement of claim was sent abroad for service on a defendant in a contracting state to the Hague Convention and the defendant has not filed a defence, judgment shall not be given under rule 210 unless the Court is satisfied that

  • (a) the statement of claim was

    • (i) served by a method prescribed by the law of the state in which service was made, or

    • (ii) delivered to the defendant or to the defendant’s residence by another method provided for in the Hague Convention; and

  • (b) the defendant has had sufficient time after the service or delivery to file a defence.

• Marginal note:Judgment

  (2) Notwithstanding subsection (1), the Court may give judgment under rule 210 if

  • (a) the statement of claim was sent by a method provided for in the Hague Convention;

  • (b) a period of not less than six months, or such longer period as the Court considers adequate in the circumstances, has elapsed since the day on which the statement of claim was sent; and

  • (c) no certificate under article 6 of the Hague Convention was received, and every reasonable effort was made to obtain such a certificate through the competent authorities of the state to which the statement of claim was sent.

• Marginal note:Interlocutory injunction or mandamus

  (3) This rule does not preclude the Court from making an order under rule 373 before service of the statement of claim.

Summary Judgment and Summary Trial

Motion and Service

Marginal note:Motion by a party

• 213 (1) A party may bring a motion for summary judgment or summary trial on all or some of the issues raised in the pleadings at any time after the defendant has filed a defence but before the time and place for trial have been fixed.

• Marginal note:Further motion

  (2) If a party brings a motion for summary judgment or summary trial, the party may not bring a further motion for either summary judgment or summary trial except with leave of the Court.

• Marginal note:Obligations of moving party

  (3) A motion for summary judgment or summary trial in an action may be brought by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion.

• Marginal note:Obligations of responding party

  (4) A party served with a motion for summary judgment or summary trial shall serve and file a respondent’s motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion.

Summary Judgment

Marginal note:Facts and evidence required

214 A response to a motion for summary judgment shall not rely on what might be adduced as evidence at a later stage in the proceedings. It must set out specific facts and adduce the evidence showing that there is a genuine issue for trial.