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Can You Sue for Medical Malpractice in Small Claims Court?


What is Small Claims Court?

The Small Claims Court is a branch of the Ontario Superior Court of Justice. It is designed to provide a means for recovery for monetary claims not exceeding $35,000 (excluding interest and costs). Among the types of matters that may be dealt with in Small Claims Court are claims for damages, including for personal injuries. 

The Rules of the Small Claims Court generally govern the Small Claims Court’s procedure, and they provide for a simpler, more abridged procedure compared with commencing a claim in the Superior Court of Justice. 

Can a Claim for Medical Malpractice be Commenced in Small Claims Court?

While theoretically it may be possible to start an action for damages in Small Claims Court for injuries arising from alleged medical malpractice (for claims $35,000 or less), that does not necessarily mean that Small Claims Court is an appropriate choice of forum for litigating this type of matter. Medical malpractice is a highly specialized area of law. The legal issues are complex, and medical negligence cases can be risky and costly to pursue. Deciding whether to commence a claim and how is a decision that is best made in consultation with an experienced medical malpractice lawyer.

Depending on the specific facts of a case, the assessment of damages is also frequently a complex endeavour. Medical malpractice lawsuits generally entitle an injured party to sue for the following types of damages:

  • Pain and suffering
  • Past lost income
  • Future loss of income/loss of earning capacity
  • Past and future care costs 
  • Healthcare expenses.

For context, the upper limit for damages for pain and suffering (which are capped by common law precedent in Canada) is currently around $450,427 adjusted for inflation as of July 2023. 

Additionally, there are many other factors involved in determining the appropriate forum for commencing a claim, such as the absence of examinations for discovery in Small Claims Court, as well as a limit on costs, which, in Small Claims Court, will not exceed 15% of the amount claimed other than in very limited circumstances.  

Ultimately, every legal case is unique with its own particular factual context, and it is therefore important to obtain legal advice tailored to your specific situation. 

If you believe that you have suffered an injury due to a healthcare provider’s negligence, it is wise to reach out to an experienced medical malpractice lawyer, who can help you understand if you have a claim, evaluate the scope of your damages, and ensure that you are making informed decisions about how best to pursue your case.

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