Rule 14.03 of the Ontario Rules of Civil Procedure outlines the process for the commencement of an action, specifically through a statement of claim or a notice of action.
The typical procedure for the commencement of an action is to file a statement of claim, which can be done using either Form 14A or 14B. However, suppose there is not enough time to prepare a statement of claim. In that case, an action may be initiated by issuing a notice of action (Form 14C), which includes a condensed explanation of the substance of the claim. This allows the action to be brought immediately.
Within the first thirty days following the issuance of the notice of action, the plaintiff must file a statement of claim (Form 14D). If the plaintiff misses the thirty-day deadline, the plaintiff can still file the statement of claim with the defendant’s written consent or with leave (i.e., permission) of the court (on notice to the defendant).
It’s also important to note that the notice of action shall not be served separately from the statement of claim, and Form 14F (Information for court use) shall be filed together with Form 14A, 14B or 14C. (However, as a side note, Form 14F is not required to be filed if a statement of claim in Form 14A or 14B or a notice of action (Form 14C) is filed electronically through the Civil Claims Online Portal).
Finally, it’s worth noting that in an action commenced by the issuing of a notice of action, the statement of claim may alter or extend the claim stated in the notice of action.
However, what happens if you do not file the statement of claim (Form 14D) within thirty days after the notice of action is issued, and you cannot get the defendant’s written consent to file it? Failure to file the statement of claim within 30 days of the notice of action being filed does not render the action a nullity. The plaintiff can request permission from the court to file the statement of claim after the thirty-day deadline. The criteria that must be met to be eligible for an extension of the time for filing and serving a statement of claim in accordance with rule 14.03 are the same as those that must be met in order to be eligible for an extension of the time for failing to serve a statement of claim within six months of it being issued. There must be an explanation for the delay and an absence of prejudice. In seeking leave to extend the time for filing a statement of claim under r. 14.03(3), the onus is on the plaintiff to prove that the defendant is not prejudiced.
The issue was considered in Samuel, Son & Co. v. Tonolli Canada Ltd. (Ont. Ct. (Gen. Div.)), DRS 95-03722. In this particular case, the plaintiff was seeking compensation for the release of hazardous materials from a neighbouring property, which the defendant had used for the operation of his battery recycling business since 1953. The defendant failed to respond to a letter of complaint dated July 1991; the plaintiff then commenced an action by notice of action in November 1992. Because of an oversight on the part of the plaintiff’s lawyer, the statement of claim was not submitted within the allotted thirty days, as stipulated by Rule 14.03(2). As soon as the mistake was discovered, the plaintiff moved to have the deadline for filing the statement of claim extended. The court approved the requested time extension on the condition that the defendant retain their ability to plead any defence at trial, including the limitation period, without having that right infringed upon. Both parties appealed the decision, but the appeal was dismissed. The court decided that the delay had been satisfactorily explained, and that the defendant had suffered no prejudice as a result of the delay. The court said that the fact that the limitation period had already expired did not preclude them from granting the extension; rather, it was merely one of the many factors that needed to be considered. The term allowing the defendant to plead the limitation period at trial prevented any future prejudice.