We continue exploring the typical litigation process. You can read the entire series here:

Ten Steps in the Litigation Process

  1. Litigation Step #1 – Filing a Statement of Claim
  2. Serving a Statement of Claim
  3. Work With Insurance Adjuster vs. Statement of Defence
  4. Preparing & Serving an Affidavit of Records
  5. Litigation and Questioning (a.k.a. Examination for Discovery)
  6. Attending Questioning by Defence
  7. Attendance at a Questioning on Undertaking Responses
  8. Attend at Independent Medical Examinations and Defence Medical Examinations 
  9. Prepare & Attend Mediation – The Mediator Role in MVA Litigation 
  10. Prepare and Attend Trial in Injury Law Litigation


In this edition…Early in the litigation process a decision must be made on whether to deal with an insurance adjuster or insist on a Statement of Defence.

Under the Rules of Court, a Statement of Defence must be filed and served on the Plaintiff within (with some limited exceptions) 20 days of the Statement of Claim having been served on the Defendant. Once you have filed and served your Statement of Claim, the adjuster for the at-fault driver of the other vehicle will generally ask your lawyer if a Statement of Defence is required. The decision to require a Statement of Defence from the adjuster (or more accurately, the insurance company of the other driver) will depend upon a number of factors.

First, if your injuries have completely resolved and you require no further treatment, then it probably makes sense to see if you can settle the claim with the insurance adjuster. If those settlement discussions are unsuccessful, you can then require the insurance adjuster to provide a Statement of Defence (the adjuster will send the file to the in-house lawyer or to a law firm that normally does defence work for the insurance industry).

Second, if your injuries have not resolved and it looks like you will need further treatment or need to have further imaging or specialist referral(s) before fully understanding the extent of your injuries and the prognosis for the future, then you may want to require the insurance adjuster arrange for a Statement of Defence to be filed and served.

Third, something to keep in mind is that all adjusters have limited ‘authority’ to deal with car accident injury claims. In other words, depending upon their seniority, adjusters are only allowed to settle claims for specific amounts of money. Most adjusters have authority to settle claims for under $100,000. Only more senior adjuster have authority to settle claims for over $100,000. If your claim is worth more than $100,000, there is little point in trying to negotiate a settlement with an adjuster prior to having the insurance company’s lawyer involved (i.e. after the insurance company has filed and served the Statement of Defence). Once a Statement of Defence has been filed and served, the file on the insurance company side of things will have more senior people reviewing the file and the likelihood of being able to resolve the claim for a greater amount is increased.

Ultimately, every claim is different and it is a bit of a ‘judgment call’ based upon experience that will determine whether to insist on a Statement of Defence or to continue dealing with the insurance company adjuster.