Defendant's Claims and Third Party Claims in Small Claims Court
Being sued does not mean you can only defend. Sometimes the person who sued you owes you money too, or someone else is really responsible. The Small Claims Court Rules let a defendant make a claim of their own in the same action.
- A defendant's claim lets a defendant claim against the plaintiff, usually about the same events, in the same court case.
- A third party claim brings in another person who is not yet part of the case, for example someone who should share the blame or reimburse you.
- The Small Claims Court money limit applies to each claim, and the time limits are short.
- Filing a defence and filing a defendant's claim are separate steps. You may need to do both.
What each claim is for
- Defendant's claim against the plaintiff: sometimes called a counterclaim. For example, a customer sued by a contractor for the balance of a bill may claim for work that was done badly.
- Third party claim: the defendant claims against a person who is not yet in the case. For example, a defendant who says a subcontractor caused the problem may bring the subcontractor in.
- Each is a separate claim, and the defendant must prove it as a plaintiff would.
Steps
- Read the plaintiff's claim and note the date you were served. The time to respond is short, and a missed deadline can lead to a default judgment.
- File a defence if you dispute the claim, and decide whether you also have a claim of your own.
- Prepare the defendant's claim form (Form 10A) with the facts, the amount and the person you claim against, and file it with the court, with the fee.
- Serve it on the plaintiff or the third party, in the way the rules require, and file proof of service.
- The person you claim against then has a limited time to file a defence to your claim.
Limits and money
- The Small Claims Court has a monetary limit, and it applies to each claim separately. A claim above the limit can be reduced by giving up the excess, or may belong in a different court.
- Your claim can also reduce what you owe. If both claims succeed, the court can set one off against the other.
- There are filing fees for a defendant's claim, which are usually recoverable in part if you win.
Where this goes wrong
- Waiting too long. A claim still has to be brought within the limitation period, and the court case has its own deadlines.
- Mixing up the two documents. A defence answers the plaintiff's claim. A defendant's claim makes your own.
- Naming the wrong person as a third party. See the guide on naming the right defendant.
- Not serving properly. See the guide on serving court documents.
Common questions
Do I have to bring a claim in the same case?
Not always, but it is often efficient. Raising it in the same case means one trial, but you must still meet the time limits and the limitation period.
What if my own claim is bigger than the Small Claims limit?
You may have to give up the excess to stay in Small Claims, or deal with it in the Superior Court. Get advice before choosing, because giving up the excess is final.
Who can help. Licensed paralegals can represent people in Ontario's Small Claims Court, including at settlement conferences and trials.
This guide is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.
Not sure where you stand? A licensed paralegal can look at your documents and tell you your options.
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