As a reminder to defence counsel, a crossclaim by a co-defendant needs to be examined to determine whether a defence to crossclaim is required.
Unless the crossclaim is only for contribution and indemnity under the Negligence Act, a defence to crossclaim should be entered.
In the personal injury realm, co-defendants sometimes seek damages for breach of contract or declaratory relief. A defence to crossclaim is required in these circumstances.
Further, even when a crossclaim is only for contribution and indemnity, if the defendant to a crossclaim wants to rely on facts not contained in its statement of defence in the main action, then a defence to crossclaim is necessary.
Rule 25.05 of the Rules of Civil Procedure provides:
Defence to Crossclaim
28.05 (1) Subject to subrule (2), a defence to crossclaim (Form 28B) shall be delivered within twenty days after service of the statement of defence and crossclaim.
Where Defence to Crossclaim not Required
(2) Where,
(a) a crossclaim contains no claim other than a claim for contribution or indemnity under the Negligence Act;
(b) the defendant to the crossclaim has delivered a statement of defence in the main action; and
(c) the defendant to the crossclaim in response to the crossclaim relies on the facts pleaded in the defendant’s statement of defence in the main action and not on a different version of the facts or on any matter that might, if not specifically pleaded, take the crossclaiming defendant by surprise,
the defendant to the crossclaim need not deliver a defence to the crossclaim and shall be deemed to deny the allegations of fact made in the crossclaim and to rely on the facts pleaded in the statement of defence in the main action.
As a reminder to defence counsel, a crossclaim by a co-defendant needs to be examined to determine whether a defence to crossclaim is required.
Unless the crossclaim is only for contribution and indemnity under the Negligence Act, a defence to crossclaim should be entered.
In the personal injury realm, co-defendants sometimes seek damages for breach of contract or declaratory relief. A defence to crossclaim is required in these circumstances.
Further, even when a crossclaim is only for contribution and indemnity, if the defendant to a crossclaim wants to rely on facts not contained in its statement of defence in the main action, then a defence to crossclaim is necessary.
Rule 25.05 of the Rules of Civil Procedure provides: