The worst part of blogging is the utter SHAME I feel when I discover a legal writing error I've been making for years.
A BC Court of Appeal decision alerted me recently to such an error. Turns out, there's one right way to draft the facts section of a response to civil claim (RTCC), and I wasn't doing it. Well, not consistently.
This discovery prompted me to put together this blog post.
Over time, I’ve learned that the best approach to the cumbersome RTCC form is a methodical one, based on three separate steps:
Pre-drafting
Drafting
Client review
Step 1: Pre-Drafting
Except in a few narrow practice areas, the days of pro forma defences are done. RTCCs require special care and attention. Before you start drafting, you'll need to answer 6 (yes, 6!) key questions.
Q1: What is my client's position on the allegations in the NOCC?
Get your client's viewpoint on every allegation of fact in the notice of civil claim (NOCC). Ask them to provide detailed notes on each paragraph. Review the available documents to understand how they relate to the plaintiff’s allegations.
Q2: What is my client's version of events?
You'll also need a chronology of events from your client's point of view. In factually complex cases, I prepare an actual chronology (which will continue to be useful throughout the litigation).
In more straightforward cases, my "chronology" may consist of a set of documents organized in chronological order and a few notes.
Q3: What are my client's defences?
This is a big question that typically requires some legal research.
You will want to understand both the causes of action alleged by the plaintiff and your client’s affirmative defences. Make notes of the following:
1. A list of the causes of action and remedies alleged by the plaintiff
For each cause of action and remedy, a list of the elements the plaintiff must establish
For each element, notes on whether the plaintiff has pleaded material facts to support each one, and whether your client has its own material facts to disprove it
2. A list of your client's affirmative defences*
For each affirmative defence, a list of the elements the defendant must establish
For each element of each affirmative defence, notes on your client's material facts supporting that element
Some resources I use to ensure I’ve covered all the elements of each cause of action and affirmative defence:
Legal textbooks
Online legal encyclopedias (Halsbury's Laws of Canada on Quicklaw or the Canadian Encyclopedia Digest on Westlaw)
Precedent collections (McLachlin & Taylor British Columbia Court Forms, available on Quicklaw or at the Courthouse Library; Bullen & Leake & Jacobs Canadian Precedents, available at the Courthouse Library; Williston and Rolls Court Forms (available on Quicklaw or the Courthouse Library)
Real-life precedents (both Quicklaw and Westlaw have a growing library of searchable precedents from actual cases. You can also find your own precedents on Court Services Online (though you'll need to know the case name first))
*An affirmative defence is any defence beyond a mere denial of the allegations in the claim. Here is a partial list of affirmative defences:
Expiry of limitation period
In an assault or battery claim, consent
In a wrongful dismissal claim, cause
Failure to mitigate
Statutory defence
Res judicata
Estoppel
Waiver
Lack of capacity or status to sue (including lack of corporate status)
Contributory negligence, contribution, or indemnity or apportionment under the Negligence Act
Release
In a libel and slander action, truth/justification, fair comment, and privilege
In an estates action, fraud or undue influence
In a contract claim, fraud, misrepresentation, non est factum, unconscionability, mistake, duress, illegality, lack of capacity, etc.
Ex turpi causa (illegality)
Q4: Are there grounds for an application to stay or strike?
In a narrow set of cases, there may be grounds to apply to stay or strike the NOCC. Consider the grounds under Rule 9-5. In cases with an out-of-province or international element, there may be a basis to apply to stay or dismiss the action on jurisdictional grounds under Rule 21-8 and the Court Jurisdiction and Proceedings Transfer Act.
Q5: Are particulars required?
If the NOCC doesn't contain enough detail to allow you to properly respond, you may need to make a demand for particulars (Rule 3-7(18) to (24)).
Q6: Is a counterclaim or third party claim warranted?
Before you start drafting, consider whether there is any basis for a counterclaim against the plaintiff (Rule 3-4) or a third party claim against another defendant or an outside party (Rule 3-5).
It’s helpful to draft these documents in tandem with the RTCC, but don’t simply plead a wholesale adoption of the allegations from the RTCC in the counterclaim or third party claim. According to Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362, a counterclaim or third party claim must be capable of standing alone.
Step 2: Drafting
It’s easiest to approach Form 2 from beginning to end, starting with the facts.
Part 1: Response to Facts
Part 1 is the most challenging section of the RTCC and will take the longest, but having completed the pre-drafting stage will help.
Division 1
Division 1 is fairly straightforward — you you fill in which of the facts in the NOCC are either admitted, denied, or said to be outside the defendant's knowledge.
Divisions 2 and 3
Divisions 2 and 3 are considerably more complex.
I must admit it was never entirely clear to me how to approach these two sections. Division 2 calls for the defendant’s “Version of Facts”, while Division 3 is for “Additional Facts.” The relevant rule, Rule 3-3(2), offers limited insight.
Last fall, the BCCA kindly clarified the issue in Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc. In that case, the plaintiff sued for non-performance of a settlement agreement. The defendant filed an RTCC and counterclaim, alleging misrepresentation, duress, breach of contract, and conversion.
The plaintiffs applied to strike the RTCC and counterclaim. Among other things, the plaintiff objected to the structure of the defendant's facts section. Instead of setting out its version of facts in Division 2 followed by additional facts in Division 3, the defendant inserted all of its facts under Division 2 and an “N/A “ under Division 3. Furthermore, Division 2 was written as a factual narrative, instead of a point-by-point response to the material facts pleaded by the plaintiff.
The chambers judge dismissed these concerns as "structure-driven," declining to "micro-manage" the defendant's pleading style. She concluded the defendant's pleadings were proper, complete, and should not be disturbed.
The Court of Appeal disagreed. In reasons by Justice Voith, the Court struck the RTCC and counterclaim, finding that the documents offended various mandatory requirements of the Rules, causing them to be prolix, confusing, and inconsistent.
Justice Voith emphasized that the rules on pleadings are there for a reason. They help to ensure that pleadings serve the ultimate function of defining the issues of fact and law that must be determined. In order for pleadings to be functional, they must be organized in such a way that the court can understand what issues the court will be called upon to decide.
From Justice Voith's reasons, we can glean several dos and don’ts of drafting an RTCC:
DON'T deny any material fact without also setting out the defendant's version of that fact. If a fact is denied, there must be an explanation why this is so.
DON'T merge Division 2 together with Division 3.
DON'T draft Division 2 in narrative form.
DO use Division 2 to respond, point-by-point, to every material fact pleaded by the plaintiff. For example:
In response to paragraph 3 of part 1 of the notice of civil claim. the defendant denies that ____ and pleads that ___
In response to paragraph 7 of part 1 of the notice of civil claim, the defendant admits that ___ but denies that ____
In response to paragraphs 23-25 of part 1 of the notice of civil claim, the defendant states that ____
DO use Division 3 to plead any material facts that you didn't cover in responding to the plaintiff's facts in Division 2. Narrative form is okay for this section.
This approach to Division 2 can feel tedious and repetitive but that’s okay. Mercantile has made clear that the point of an RTCC is not to tell a compelling story of the defendant’s version of events, but rather to clearly inform the court of the defendant’s position with respect to each of the plaintiff’s allegations. According to Justice Voith (at para. 44):
[N]one of a notice of claim, a response to civil claim, and a counterclaim is a story. Each pleading contemplates and requires a reasonably disciplined exercise that is governed, in many instances in mandatory terms, by the Rules and the relevant authorities.
A few more drafting tips to keep in mind as you make your way through Divisions 2 and 3:
DON’T plead evidence (Rule 3-7(1)). In other words, state what you intend to prove, but not how you intend to prove it (i.e., plead that there was a phone call in which the parties reached a certain agreement, but do not plead that your client took contemporaneous notes of the phone call).
DON’T plead the exact words of conversations and documents unless they are material (Rule 3-7(2)).
DO use defined terms and, where possible, use the same defined terms as the plaintiff. However, don't adopt any of the plaintiff’s definitions that you feel are unfair, inaccurate, or sloppy.
DO use headings to break up big blocks of text.
Part 2: Response to Relief Sought
After making it through the last section, Part 2 is nice and simple. Just follow the boilerplate language for consenting, opposing, or taking no position on the relief sought.
Part 3: Legal Basis
Part 3 requires "a concise summary of the legal bases on which the defendant opposes the relief sought by the plaintiff and specify any rule or other enactment relied on."
Though Part 3 calls for only a "concise summary," it requires more than a vague general statement of the law. In Mercantile, the Court was unimpressed with the defendant's terse reliance on "the common law of contract and the law of negligence."
Instead, get out the notes you made earlier and make sure Part 3 covers:
A denial of each cause of action alleged by the plaintiff (preferably separated by headings)
A denial of each element of each cause of action that your client says will not be established
A pleading of each affirmative defence
All of the statutory provisions and Rules on which your client relies
Some lawyers list cases in Part 3, but that’s not necessary, nor is it even possible in many cases to identify the best authorities at such an early stage in the proceeding.
As you go through Part 3, remember that conclusions of law may only be pleaded if the material facts supporting them are pleaded (Rule 3-7(9)). Double-check that there are material facts pleaded in Part 1 that support each of your points in Part 3.
Remember, you can make inconsistent allegations in a pleading as long as you make clear they are being pleaded in the alternative (Rules 3-7(6) and (7)).
Step 3: Client Review
Leave sufficient time for your client to review your draft RTCC. In particular, highlight the allegations being admitted and explain that admissions that cannot be withdrawn except by consent or leave of the court (Rule 7-7(5)).
Instead of leaving the client to cross-reference Division 1 of Part 1 (where certain paragraphs are admitted and denied), consider sending, together with the RTCC, a copy of the NOCC that is highlighted in different colours to confirm for the client that certain admissions are being made.