Starting a King's Bench Case

Most King’s Bench cases are started with a statement of claim. In some cases, the King’s Bench Rules or another law require an action to be started with an originating application. These are generally used when a law specifically says that someone can make an application to court to resolve a certain issue. In other cases, a matter may get to King’s Bench through a notice of appeal. For example, matters from Small Claims Court are appealed to King’s Bench.

There are some general rules that apply to a statement of claim. There are also detailed rules that apply to certain types of cases. You will need to review these rules to see if they apply to your case.

The statement of claim must include the facts you will rely on to make your case. Do not, however, include the evidence that will be used to prove those facts. The claim must tell the other party what you are claiming and why.

Use Form 3-9 of the King’s Bench Forms to create your statement of claim. Divide the content into numbered paragraphs with one paragraph for each issue. Sign it when you are done. Your statement of claim must include:

• the names of the parties and where they live
• what you are claiming
• the facts that prove your case but not the evidence you will use to prove those facts
• any laws that support your case
• any remedy you want the court to order

Once completed, you should file your statement of claim at the appropriate judicial centre. This will be the courthouse nearest to where:

• the incident or reason you are suing took place
• the defendant lives
• the defendant carries on business

A claim can be filed at any courthouse, but the defendant can request that it be transferred to one of the places mentioned above. The parties can also agree on a particular judicial centre. There are special rules about some types of cases. For example, cases that concern land must generally be started at the judicial centre nearest to where the land is located.

The court will issue the statement of claim once it is filed. You must then serve it on the other party within 6 months from the date it was issued.

Certain types of actions may be started using an originating application, including matters relating to:

• the administration of an estate or trust, such as the removal of an executor or trustee
• an interest in land, such as determining the boundaries of the land or settling the priority of interests on the land
• judicial review of a governmental decision, act or omission

An originating application may also be used if a law uses wording like “apply to the court” or “apply by originating application”. A matter is only required to be started using an originating application if a law says that it must start what way. If not, then it is optional.

An originating application does not follow the full trial process. Instead, a hearing date is set right from the beginning. The evidence that parties will rely on is exchanged relatively quickly. Applicants must file and serve any evidence they intend to rely on 14 days before the date of the hearing. Both sides must also file and serve briefs of law setting out their arguments. Applicants must do this at least 10 days before the hearing.

The purpose of an originating application is for the court to resolve specific issues like those mentioned above. This can save time and money as a full trial process is not required.