A counterclaim is a claim that a defendant advances against the plaintiff in the same action as the plaintiff’s original claim, rather than by commencing a separate proceeding. A counterclaim is a substantive claim for damages, debt, or other relief — not merely a defence — and it proceeds as an independent action that is heard together with the main claim. In Alberta, counterclaims are available in both the Court of King’s Bench (filed alongside a statement of defence) and the Alberta Court of Justice (filed within a dispute note), with procedural rules and deadlines that parallel but do not mirror each other.
Advancing a related claim against the plaintiff. A counterclaim is generally appropriate where a defendant has its own claim against the plaintiff arising out of the same facts or the same relationship as the plaintiff’s claim. Pairing the claim and counterclaim in a single action is typically more efficient than commencing a separate proceeding, and allows both claims to be resolved in one trial.
Advancing an unrelated claim against the plaintiff. A counterclaim is not limited to claims arising from the same facts as the main action. A defendant may counterclaim against the plaintiff on any cause of action, including claims unrelated to the subject matter of the plaintiff’s claim.
Adding a new party to the counterclaim. In both the Court of King’s Bench and the Court of Justice, a counterclaim may join a person who is not already a party to the action where that person is properly joined with the plaintiff as a defendant-by-counterclaim. This can be useful where liability lies partly with the plaintiff and partly with a third party.
Limitations Act, RSA 2000, c L-12 — Governs the time limits for commencing civil claims in Alberta.
Alberta Rules of Court, Alta Reg 124/2010 — The procedural rules governing civil litigation in the Court of King’s Bench of Alberta and Court of Appeal of Alberta.
Court of King’s Bench Act, RSA 2000, c C-31 — Establishes the jurisdiction of Alberta’s superior trial court for civil matters.
Court of Justice Act, RSA 2000, c C-30.5 — Governs the Alberta Court of Justice, which handles civil claims up to $100,000 under a streamlined process.
Federal Courts Act, RSC 1985, c F-7 — Governs the jurisdiction of the Federal Court of Canada, which has exclusive jurisdiction over Federal legal matters.
Missing the deadline to file a counterclaim. In the Court of King’s Bench, a counterclaim generally must be filed and served within 20 days if served in Alberta, one month elsewhere in Canada, and two months outside Canada.
Failing to respond to a counterclaim. A plaintiff served with a counterclaim is generally required to file a statement of defence to counterclaim within the applicable timeframe. A plaintiff who fails to respond can be noted in default on the counterclaim, and a default judgment can be entered against the plaintiff-by-counterclaim.
Joining a new party to the counterclaim. Adding a non-party as a defendant-by-counterclaim is generally permitted where the new party is joined together with the plaintiff, and is subject to the service and pleading requirements applicable to third party claims. Counterclaims that improperly add a stranger to the action may be severed.
Counterclaim struck for lack of a reasonable cause of action. A counterclaim that does not disclose a reasonable cause of action, is frivolous or vexatious, or is otherwise an abuse of process can be struck.
Can I file a counterclaim against someone who is not the plaintiff? Yes, in certain circumstances. A counterclaim may be filed against the plaintiff together with another person who is not already a party to the action, provided the new party is properly joined with the plaintiff.
What is the deadline to file a counterclaim in Alberta? In the Court of King’s Bench, a counterclaim generally must be filed after 20 days if served in Alberta, one month elsewhere in Canada, and two months outside Canada.
Do I have to file a counterclaim in the same action, or can I start a separate lawsuit? A defendant is not required to advance its claim as a counterclaim. A defendant may instead commence a separate action against the plaintiff. However, counterclaims are generally more efficient because they consolidate related issues, share discovery, and reduce the risk of inconsistent findings.
What happens to my counterclaim if the plaintiff discontinues the main action? A counterclaim is an independent action. This means the counterclaim generally continues even if the plaintiff discontinues or abandons the main claim. The defendant-by-counterclaim steps into the position of defending the counterclaim on its own terms, and the action proceeds in the defendant’s name as plaintiff-by-counterclaim.
What happens if my counterclaim succeeds but the main claim also succeeds? Where both the main claim and the counterclaim succeed, the court generally enters separate judgments in each direction, and the amounts may be set off against each other. For example, if the plaintiff obtains judgment for $50,000 on the main claim and the defendant obtains judgment for $30,000 on the counterclaim, the court may direct that the defendant pay the plaintiff a net amount of $20,000.
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