By Richard Bogoroch and Emma Holland *
June 13, 2005
Pleadings are an art form. As Plaintiff’s counsel, the Statement of Claim allows you an opportunity to frame the story your client wishes to tell. Done well, a Statement of Claim acts as an important tool of persuasion and establishes the theme of the case.
In drafting a Statement of Claim, the Plaintiff is challenged with balancing the need to plead broadly to allow for any changes in the sequence of events or facts unknown at the time of issuance, while at the same time, pleading with enough specificity to establish the cause of action.
The first step in drafting a Statement of Claim is to ensure that you have correctly identified all of the relevant parties, both Plaintiffs and Defendants. As Plaintiff’s counsel, you will have to consider whether family members should be added to the claim as Family Law Act1 claimants, with consideration given to the applicable statutory deductions. Where a minor Plaintiff is asserting claims, it is also necessary to ensure that the Litigation Guardian has been appropriately identified in the style of cause.
In determining which parties to identify as the appropriate Defendants in an action, it is wise to err on the side of caution in naming any and all parties who may ultimately be found to be responsible for the proposed claim. Often in a medical malpractice action, the expiry of a limitation period is approaching and counsel must issue the Notice of Action and/or Statement of Claim without receiving all of the relevant documentation needed to fully investigate the claim. In such cases, it is necessary to name as Defendants all primary medical personnel who participated in the alleged negligent treatment, along with additional, yet to be identified Defendants (i.e. “Dr. John Doe” and/or “Nurse Jane Doe”). In doing so, the applicable limitation periods may be protected and the Plaintiff is able to assert the right of discovery over more parties, adverse in interest, who may be able to offer further insight into the alleged negligence.2 It is, however, essential to proceed to discovery only after an investigation has been conducted and only after counsel is in receipt of an expert report favourable to his case.
In many cases, it will also be necessary to plead inconsistent allegations in order to assert multiple causes of action and/or assert the same allegations of negligence against different Defendants when responsibility for the negligence remains unclear. Pleading “in the alternative” is permitted under the Rules of Civil Procedure so long as this inconsistency is acknowledged in the Statement of Claim.”3
1R.S.O. 1990, c. F. 3, as amended.
* Richard Bogoroch would like to thank Emma Holland for her substantial and invaluable contribution to the writing of this paper.
2Rule 31.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.
3Rule 25.06(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended.