How to Draft a Statement of Claim That Survives a Motion to Strike?

For a junior associate or a self-represented litigant, filing a Statement of Claim marks a critical threshold: the transition from theory to the formal, unforgiving arena of commercial litigation. The document is not merely a summary of a grievance; it is the architectural foundation of the entire legal action. A poorly constructed claim invites a motion to strike—a procedural attack designed to dismiss the case on a preliminary basis, often before the substantive merits are ever considered. This is the first strategic move in a game of procedural chess, and a misstep here can be both costly and demoralizing.

Many guides focus on the basics: be clear, state the facts, and ask for a remedy. However, they often fail to address the tactical nuances that separate a resilient claim from a vulnerable one. The true challenge lies in anticipating the counter-moves of experienced defence counsel. They will scrutinize the document not for its narrative power, but for its procedural flaws. This requires a defensive mindset, a process we can call ‘strike-proofing’ the claim from its inception.

This guide moves beyond the fundamentals to focus on the common procedural tripwires that can trigger a motion to strike or otherwise invalidate a claim. We will dissect the critical distinction between fact and evidence, explore the complexities of serving an evasive defendant, clarify the consequences of suing the wrong entity, and navigate the jurisdictional minefields that can get a case thrown out. By mastering these defensive principles, a plaintiff can build a claim that is not only well-pled but strategically sound, capable of withstanding the inevitable initial challenges and proceeding to a resolution on its merits.

This article provides a structured path through these critical considerations, offering a technical and instructional framework to help you construct a legally robust Statement of Claim. The following sections break down each potential pitfall and the strategies to navigate it effectively.

Fact vs Evidence: The Common Drafting Error in Initiating Documents?

The most fundamental error in drafting a Statement of Claim is conflating material facts with evidence or legal conclusions. A claim is struck if it discloses no reasonable cause of action, a standard assessed by the ‘plain and obvious’ test. This test, as established by the Supreme Court in R. v. Imperial Tobacco Canada Ltd., requires a court to assume all pleaded facts are true. However, this assumption applies only to material facts—the specific events and circumstances that, if proven, would entitle the plaintiff to a remedy. It does not apply to the evidence used to prove those facts, nor to the legal characterization of those facts.

Pleading evidence (e.g., “a witness saw the defendant run the red light”) or legal conclusions (e.g., “the defendant was negligent”) is improper and can render a claim confusing, prolix, and vulnerable to being struck. The core task of the pleading architect is to state *what* happened, not *how* it will be proven or *what* legal label it carries. For example, instead of pleading “the defendant breached the contract,” one must plead the material facts of that breach: the existence of a specific contractual clause and the defendant’s specific action or inaction that violated it.

This distinction is not merely academic; it is the bedrock of procedural fairness. It informs the defendant of the precise case they have to meet without burying them in the plaintiff’s entire evidentiary file. A claim composed of bald allegations or legal arguments fails this primary function and is a prime target for a motion to strike.

The following table illustrates the practical difference between improper pleading of evidence or conclusions and the proper pleading of material facts.

Material Facts vs Evidence – Before and After Examples

Type	Before (Evidence/Conclusion)	After (Material Facts)
Contract Breach	The defendant breached the contract	On June 1st 2023, the defendant failed to deliver 500 widgets as required by clause 4.1 of the signed contract dated January 15th 2023
Negligence	The store was negligent	The store’s walkway was covered in ice on March 10th 2023
Non-payment	Defendant owes money	Defendant received invoice #1234 for $25,000 on April 1st 2023 with payment due April 30th 2023, which remains unpaid

Personal Service vs Alternatives: How to Serve a Defendant Who Is Evading You?

A perfectly drafted Statement of Claim is worthless until it is properly served on the defendant. The default and preferred method across Canadian jurisdictions is personal service: physically handing the document to the individual or an officer of the corporation. However, a common practical challenge arises when a defendant actively evades service. In such cases, a plaintiff is not without recourse but must meticulously lay the groundwork to seek an order for substituted service.

Substituted service (or “sub-service”) allows a plaintiff to serve documents by an alternative method, such as leaving them with another adult at the defendant’s residence, sending them by registered mail, or even using modern electronic means. To obtain such an order, a plaintiff must convince the court through affidavit evidence that all reasonable and diligent efforts to effect personal service have failed. This requires a detailed record of every attempt, including dates, times, locations, and outcomes. Simply stating “the defendant could not be found” is insufficient.

Canadian courts have shown increasing flexibility in recognizing modern communication channels as valid means of service, provided it can be shown that the method will likely bring the document to the defendant’s attention. This adaptability is crucial in the digital age, where a defendant’s physical location may be elusive, but their online presence is active and verifiable.

Before petitioning the court for an alternative, a plaintiff must demonstrate exhaustive efforts. The following points form a checklist of actions that should be undertaken and documented:

• Document all service attempts with precise dates, times, and locations.
• Attempt service at multiple known addresses (home, work, relatives).
• Search public records (e.g., land titles, corporate registries) for current address information.
• Make discreet inquiries with known associates or employers regarding the defendant’s whereabouts.
• Prepare a comprehensive affidavit detailing all failed service attempts.
• Gather evidence showing the defendant’s active use of the proposed alternative service method (e.g., recent social media posts, email responses).

Misnomer Doctrine: What Happens If You Sue the Wrong Corporate Entity Name?

Suing the wrong party is a fatal error, but what happens when you sue the right party under the wrong name? This is where the misnomer doctrine comes into play. A misnomer is a mistake in naming the correct legal entity—for example, using a trade name like “City Pizzeria” instead of the legal corporate name “123456 Ontario Inc.” It is a procedural error that can typically be corrected by a motion to amend the pleadings, even after a limitation period has expired.

The key to the misnomer doctrine is demonstrating that the intended defendant was clear from the outset, despite the incorrect name on the pleading. The court will ask: would a reasonable person receiving the Statement of Claim, looking at the facts pleaded, know that they were the intended defendant? If the body of the claim correctly describes the actions of the party, but only the name on the title of proceedings is wrong, the court will likely permit the correction.

This situation must be distinguished from a case of mistaken identity, where the plaintiff intended to sue a different entity altogether. For instance, suing “ABC Contracting Inc.” for work done by its unrelated competitor, “XYZ Contracting Ltd.,” is not a misnomer. In this scenario, the plaintiff is attempting to add a new party to the action, not correct the name of an existing one. As according to established Canadian case law on the misnomer doctrine, a misnomer can be corrected after limitation periods expire, but adding a new party cannot. This distinction is critical. If the limitation period has passed, an attempt to add a new party will be statute-barred, and the claim against that new party will fail.

Therefore, pre-litigation due diligence is paramount. Always conduct corporate searches to confirm the precise legal name of the intended defendant. Relying on invoices, business cards, or websites can be misleading, as they often use operating or trade names. A simple search can prevent a complex, and potentially fatal, motion regarding a misnomer or the expiry of a limitation period.

The Frivolous Claim: How Courts Punish Plaintiffs Who Sue Without Legal Basis?

The court system is not a playground for baseless accusations or strategic harassment. To deter litigation that has no legal merit, Canadian courts are empowered to punish plaintiffs who file frivolous, vexatious, or abusive claims. The primary tool for this is not just the striking of the claim but also the imposition of elevated cost awards against the unsuccessful party.

In most Canadian provinces, costs are awarded on a “loser pays” principle. The default award is typically on a partial indemnity scale, meaning the successful party recovers a portion (often 50-60%) of their actual legal fees. However, where a party’s conduct is deemed worthy of sanction—such as pursuing a claim that was obviously bound to fail or acting in bad faith—courts can order costs on a higher scale. This can be substantial indemnity (around 80-90% of fees) or, in the most egregious cases of misconduct, full indemnity (100% of fees).

Filing a Statement of Claim without any reasonable legal or factual basis is precisely the type of conduct that attracts such punitive cost awards. It forces a defendant to incur legal expenses to defend a meritless action, and the court uses costs to compensate the defendant and deter similar behaviour from others. For a plaintiff, this means the risk is not just the loss of their own legal investment but also the assumption of a significant portion of the defendant’s legal bill.

In addition to financial penalties, courts have specific rules to manage litigants who repeatedly file baseless claims. As outlined by the Ontario Rules of Civil Procedure:

Vexatious litigants may be required to seek court permission before filing any new lawsuits

– Ontario Rules of Civil Procedure, Rule 2.1.01 – Frivolous and Vexatious Proceedings

This powerful measure effectively acts as a gatekeeper, preventing an abusive party from continually using the court process to harass others. The financial and procedural consequences of filing a frivolous claim are severe, underscoring the need for a sober, objective assessment of a case’s merits before initiating proceedings.

Canadian Cost Awards Scale

Cost Award Level	Recovery Percentage	When Applied
Partial Indemnity	50-60% of legal fees	Default for unsuccessful party
Substantial Indemnity	80-90% of legal fees	Conduct worthy of sanction
Full Indemnity	100% of legal fees	Rare – most egregious conduct
No Costs	0%	Divided success or special circumstances

The Notice of Intent to Defend: How to Buy 10 Extra Days to Prepare Your Defence?

From the plaintiff’s perspective, understanding the defendant’s procedural options is key to anticipating the rhythm of the litigation. After being served with a Statement of Claim in a jurisdiction like Ontario, a defendant typically has 20 days to deliver a Statement of Defence. However, they have a strategic option to extend this deadline by filing a Notice of Intent to Defend.

Filing this notice is a simple procedural step that automatically grants the defendant an extra 10 days, giving them a total of 30 days to prepare and serve their Statement of Defence. For the plaintiff, this means a slight delay in receiving the defence and moving the action forward. It is a common and routine step, often used by defendants to secure more time to retain counsel or to fully investigate the allegations in the claim.

However, the filing of a Notice of Intent to Defend has a critical and often overlooked jurisdictional consequence. By filing this document, the defendant is considered to have “attorned” to the jurisdiction of the court. Attornment is a legal concept meaning the defendant has voluntarily submitted to the court’s authority. This act forever waives their right to later challenge the court’s jurisdiction over the dispute—for example, by arguing the case should have been brought in another province.

A savvy defendant who wishes to contest jurisdiction will *not* file a Notice of Intent to Defend. Instead, they will bring a motion to challenge jurisdiction within their original 20-day response period. Understanding this decision tree is crucial for a plaintiff:

• If you receive a Notice of Intent to Defend: Expect the Statement of Defence within 30 days of service. The defendant has accepted the court’s jurisdiction.
• If you receive a motion challenging jurisdiction instead: The action is paused while the jurisdictional issue is litigated. The defendant is arguing the case is in the wrong court entirely.

This bifurcation of the defendant’s response strategy highlights the importance of making the correct jurisdictional decision from the outset, a topic explored in the next section.

The Jurisdictional Error That Gets Your Case Thrown Out Before It Starts

Choosing the correct jurisdiction—the province and the level of court—is a threshold decision with profound consequences. A jurisdictional error is not a minor procedural hiccup; it is a fundamental flaw that can lead to the entire action being stayed or dismissed, wasting significant time and money. There are two primary layers to jurisdiction: monetary and territorial.

Monetary jurisdiction dictates which level of court can hear a claim based on the amount of money at stake. Each province has a Small Claims Court for lower-value disputes, which offers a simplified, faster, and less expensive process. Suing for an amount above that court’s limit in Small Claims Court is a fatal error. Conversely, bringing a minor claim to a higher court (like the Superior Court) can result in adverse cost consequences, even if successful. These monetary limits vary significantly by province, and it’s critical to know the current numbers, as they are periodically updated. For example, according to current provincial small claims court jurisdiction limits, the cap is $100,000 in Alberta, $35,000 in British Columbia, and will be $50,000 in Ontario as of October 2025.

Territorial jurisdiction concerns which province has the authority to hear the case. In disputes involving parties from different provinces, a plaintiff must sue in a court that has a “real and substantial connection” to the dispute. This principle, established by the Supreme Court of Canada, prevents a plaintiff from “forum shopping” and suing in a jurisdiction that is inconvenient or unfair to the defendant. Determining the proper forum involves weighing several connecting factors. A mistake here will trigger a motion from the defendant to stay the action on jurisdictional grounds.

Carefully analyzing these factors before filing is a crucial part of the ‘strike-proofing’ process. Selecting the wrong jurisdiction is an open invitation for a costly and time-consuming preliminary battle that can, and often does, result in the case being thrown out before its merits are ever heard.

How to Serve Legal Documents in Quebec When You Are Based in British Columbia?

Serving legal documents across provincial borders is routine in Canada, but serving from a common law province like British Columbia into Quebec’s distinct civil law system requires special attention. The procedural differences are not trivial; they are fundamental. Failure to respect Quebec’s unique requirements will result in invalid service, rendering your BC-issued Statement of Claim ineffective.

The first distinction is terminology. Quebec does not use a “Statement of Claim.” The initiating document is a “Demande introductive d’instance.” While the substance is similar, the form and language adhere to the Civil Code of Quebec. More importantly, the method of service is rigidly prescribed. In BC, any person over the age of 19 who is not a party to the action can serve documents. In Quebec, service must be effected exclusively by a huissier de justice (bailiff). This is a mandatory requirement, not an option.

A BC-based litigant or lawyer cannot simply mail the documents or have a friend in Montreal deliver them. The proper procedure is to retain a Quebec huissier directly or work through a Quebec law firm. The huissier will then carry out service according to the rules of the Code of Civil Procedure of Quebec. Following service, the huissier will prepare a “procès-verbal de signification” (a formal report of service), which is the official proof of service, equivalent to an Affidavit of Service in BC. This document is then returned to the BC party to be filed with the BC court. The Interprovincial Summonses Act helps facilitate the recognition of these processes across provincial lines, but the on-the-ground execution must follow local rules.

The following table highlights the critical differences a BC litigant must navigate when serving a defendant in Quebec.

BC vs Quebec Service Requirements

Aspect	British Columbia	Quebec
Legal System	Common Law	Civil Code
Initiating Document	Statement of Claim	Demande introductive d’instance
Who Can Serve	Any person over 19 (not party)	Huissier de justice only
Proof of Service	Affidavit of Service	Procès-verbal de signification

How to Estimate the Total Cost of Commercial Litigation Before Filing a Claim?

Before launching a commercial litigation action, a prudent plaintiff must conduct a sober cost-benefit analysis. The potential recovery must be weighed against the significant, and often unpredictable, costs of the legal process. Estimating the total cost is not an exact science, but understanding the key phases and potential ancillary expenses is essential for informed decision-making and for managing client expectations.

Legal fees are typically the largest component of litigation costs. These costs are not incurred as a single lump sum but accumulate through distinct phases of the lawsuit. A preliminary motion, such as a motion to strike brought by the defendant in response to a poorly drafted claim, represents a significant and immediate cost that can derail the initial budget before the case even progresses to the discovery phase. If the motion is lost, the plaintiff will likely have to pay a portion of the defendant’s costs for the motion, in addition to their own legal fees.

Beyond legal fees, a litigant must budget for a range of other expenses, often called disbursements. These are out-of-pocket costs that are frequently overlooked in preliminary estimates. They include mandatory court filing fees, the cost of expert witnesses (who can charge thousands for a report and their time), transcript costs for examinations for discovery, and travel expenses. A particularly significant and often underestimated risk is an adverse cost award—if the case is lost, the plaintiff may be ordered to pay 50-90% of the defendant’s total legal bill.

Canadian Commercial Litigation Cost Benchmarks by Phase

Phase	Cost Range (CAD)	Additional if Motion to Strike
Drafting & Filing Statement of Claim	$3,000-$7,000	N/A
Responding to Motion to Strike	N/A	$5,000-$15,000
Discovery Process	$10,000-$30,000	May be delayed
Pre-trial Motions	$5,000-$20,000 each	Additional motions likely
Trial (per day)	$5,000-$15,000	If case survives

To build a more realistic budget, consider this checklist of often-overlooked costs:

• Court filing fees (e.g., $200-$500 for a Statement of Claim, varies by province).
• Expert witness fees ($300-$1,000/hour plus report costs).
• Discovery transcripts and document production costs (e.g., printing, scanning).
• Potential adverse cost awards if unsuccessful (50-90% of opponent’s legal fees).
• Premiums for After-the-Event (ATE) insurance to cover adverse costs.
• Costs related to third-party litigation funding, if used.
• Travel costs for examinations, mediations, and court appearances.

Undertaking a thorough cost estimate is the final strategic checkpoint before committing to litigation. It ensures that the decision to file a Statement of Claim is based not on emotion, but on a clear-eyed assessment of the potential risks and rewards, transforming it from a gamble into a calculated business decision.