Learn more about the process of filing a personal injury lawsuit in Canada and how a personal injury lawyer can guide you through the process
For every wrongful or negligent act, there will always be legal consequences. Canadian laws bring justice by penalizing the offender and by compensating the injured party through personal injury lawsuits.
What is personal injury in Canada?
Personal injury occurs when the injured party (the plaintiff in the personal injury lawsuit) suffers physically or psychologically because of a negligent or intentional act by another person (the defendant in the personal injury lawsuit).
Canadian laws which govern personal injury are a combination of:
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- common law, case-made law, or judicial precedents
- federal laws governing insurance and negligence;
- provincial or territorial laws also governing insurance and negligence
Among the common suable causes of personal injury lawsuits in Canada are:
- motor vehicle or car accidents
- slip-and-fall accidents
- injuries caused by assault or battery
- medical malpractice or medical negligence
- workplace or employment accidents
- injuries caused by product defects
What is the process in filing for a personal injury lawsuit in Canada?
Under the law, it is your right as an injured party to bring a case against the offending party for compensation and damages. Exercising this right by filing a personal injury lawsuit before the courts involves numerous – and sometimes confusing – legal procedures.
Here is the usual process when filing a personal injury lawsuit in Canada.
Consult with a lawyer
It all starts with consulting a personal injury lawyer who will advocate for your cause. It starts from the moment you meet with them until it is finally resolved through the judgment or settlement of a final award for damages and compensation.
Choosing and retaining your personal injury lawyer is also important for continuity purposes. Because they know your case from the beginning, any change of circumstances could easily be addressed.
Elements of personal injury
According to common law, in filing a claim under a personal injury lawsuit in Canada, you (as the plaintiff) must be able to establish these facts:
- duty: that the defendant or offending party owes the plaintiff (either personally or towards the public) a duty or a legal obligation to meet a certain degree of care, that is either based on a contract, a quasi-contract, or any other relationship;
- breach of duty: that this duty of care of the defendant or offending party has been breached or violated, either negligently or intentionally, and either through their act/s, omission, or inaction;
- damage: that the plaintiff has suffered an actual personal injury (i.e., physical, mental, and/or psychological damage) because of this breach of duty of care; and
- causation: that the damage the plaintiff has suffered because of this breach of duty is caused by the defendant, or that there is a reasonable causation between the personal injury and the defendant’s breach of duty.
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Evidence to be presented
In filing a personal injury lawsuit in Canada, these elements of personal injury are established or proved through pieces of evidence. It may either be in the form of documentary evidence and/or testimonies, such as those coming from witnesses, or credible persons involved in the relationship which caused the personal injury. It may also include your testimony as the offended party.
The duty of the defendant and the standard of care expected of them may be established through a written contract or agreement, the industry standards and guidelines (e.g., code of ethics and professionalism for doctors), or through a quasi-contract.
Proving the defendant’s breach of duty that resulted in your personal injury will usually involve testimonies. It may be your testimony, or from any witness, which will tell the court that one of these:
- the defendant acted negligently or carelessly
- that their inaction or omission caused the accident that resulted in your personal injury
- that the accident or incident causing you an injury would not have occurred if not for the defendant’s actions or inaction
Pieces of evidence proving the damage or compensation you are claiming are important. These may include actual medical bills (which may also be a basis for the computation of future medical bills), financial records or statements from your employer to prove lost income, or any other documentation that will show the actual costs you have incurred because of the personal injury.
Compute the appropriate damages
Computing the appropriate damages that you will be asking from the defendant mainly involves knowing your worth and standing by it. Part of the work of personal injury lawyers is to help you with the computation of the damages or compensation based on the facts of your case.
Under Canada’s law on torts and damages, there are two kinds of damages that a plaintiff may recover from the defendant when a personal injury occurs:
- compensatory damages or general damages: also called non-pecuniary damages, it is the unquantifiable amount of damages or compensation for the mental or psychological stress caused by the personal injury; and
- pecuniary damages: it is the quantifiable amount of damages or compensation, or the “out-of-the-pocket" expenses incurred because of personal injury (e.g., lost income, medical treatment, costs of litigation, etc.).
Common law dictates that the maximum compensation for general damages on pain and suffering in Canada is capped at C$100,000, but this was increased to C$300,000 based on inflation.
The average payout for a personal injury claim in Canada will be based on the combination of general damages and pecuniary damages. This will be evaluated fairly for you by your personal injury lawyer. Common law also governs the computation of damages that the court may award the plaintiff.
In some jurisdictions, the liability of the defendant and the insurance company for personal injury lawsuits under a motor vehicle accident involve what the law calls “verbal thresholds” and “deductibles”.
Mediation or negotiation
By consulting with a personal injury lawyer, you would know whether to proceed directly with filing a personal injury lawsuit in court or to first try to negotiate or mediate with the offending party (through their lawyer and their insurance company). Most cases involving personal injuries do not always go to trial immediately, since these cases may also be resolved out of court.
According to Greg Neinstein, managing partner of Neinstein Personal Injury Lawyers (Toronto), challenges brought by the slow litigation system have led to changes. “Our own strategies have changed a bit...utilizing alternative dispute resolutions or improving dialogue with opponents in a way that we weren't incentivized to do before in the same way,” he says. This provides personal injury lawyers – and clients alike – with methods of resolving personal injury claims without going to court.
It’s important to be wary of the “lowball offer” or “take-it-or-leave-it offer” that the offending party’s lawyer or insurance company may present. A personal injury lawyer can guide you during a negotiation or mediation. They can caution you on the offer, advising if it is adequate or not.
Negotiation
In a negotiation, both sides would try to settle your appropriate compensation without any third-party intervention. A settlement is reached when both parties agree to the terms of the compensation.
It is important to let your personal injury lawyer handle the negotiations. It is most likely that you are still recovering from the injury or grieving a loss.
Because a negotiation is not just a one-time meeting, it is important for your lawyer to keep you updated. Your lawyer can advise if there’s a chance of settling the personal injury claim or if a court proceeding would be your best option.
Mediation
Depending on the province or territory you are in, mediation may be required before filing a personal injury lawsuit in court. In Ontario, for example, you will be required to undergo mediation first before you are allowed to file your case before the court.
Alberta has a similar requirement:
To learn more about specific requirements for your territory or province, get expert advice from one of the best personal injury law firms in Canada.
Preparing for mediation
Before mediation starts, you and the other party would need to agree on who will be your appointed mediator. The mediator is an independent, neutral, third party who will facilitate the discussion to come up with a win-win solution through an amicable settlement or agreement.
During mediation
During the mediation, you and your personal injury lawyer would typically be there to present your case before the other party and to convince them that the amount of damages you are claiming is justified.
The other party would usually be represented by their lawyer and the insurance adjuster or representative.
All other details of the mediation process would depend on both parties’ agreement. It would also depend on the internal rules of the ADR institution where you and the other party agreed to submit your case.
Mediation starts with both parties and the mediator meeting in one room, with each side making introductory statements. This is followed by making an offer and counteroffers by bringing both parties into different rooms.
The mediator would go between the two parties, hearing their side of the offer, bringing it back to the other party for their consideration, and so on, until a settlement is reached.
If you and the other party agree, a failed mediation may be remedied with another session of mediation. There is nothing in the law that prevents parties from holding as many mediation sessions as needed, as long as both parties agree to it.
Mediation vs. arbitration
Mediation should not be confused with arbitration.
In mediation, the mediator only facilitates the discussion between the two parties with no “judge-like” powers or decision-making authority.
In arbitration, the arbitrator or panel of arbitrators will rule on the case based on the claims presented and the evidence offered by both parties.
The decision-making power also varies between mediation and arbitration. In mediation, it is the parties (you and the offending party) who will decide the fate of the case. In arbitration, it is the arbitrator or the panel of arbitrators who have the decision-making power.
Filing the personal injury lawsuit in court
If the negotiation or mediation ends without any agreed settlement, or if it fails because you or the other party are not amenable to the terms of the offer, that would be the time to file the personal injury lawsuit in court. Your personal injury lawyer now shifts from being a settlement lawyer to a trial lawyer.
Statute of Limitations
One consideration in filing a personal injury lawsuit in Canada is the statute of limitations as enacted in your province. The statute of limitations means that you are allowed a period to file the case in court. Once that period lapses, you are then barred or from filing the case.
This limitation is premised on the idea that a plaintiff must be vigilant in asserting their rights against the defendant, and that the defendant should be granted relief because of the inaction and passivity of the plaintiff to file a court action.
Here are some of the prescriptive periods for personal injury lawsuits in Canada, being a civil action in nature:
- Ontario’s Limitations Act, 2002: 2 years
- Quebec’s Civil Code: 3 years or 10 years depending on the circumstances
- British Columbia’s Limitation Act: 2 years
- Alberta’s Limitations Act: 2 years
- Manitoba’s The Limitations Act: 2 years
A personal injury lawyer can advise on the statute of limitation for other provinces and territories. These periods run after the personal injury either occurred or was discovered.
It is important that you consult with a lawyer immediately after a personal injury occurs to prevent the running of the statute of limitations against you.
Criminal offences are generally not covered by the statute of limitations in Canada. Any criminal case arising out of the same accident or negligent act, which is the cause of action of your personal injury lawsuit, may still be prosecuted by the government.
Have any questions or comments on this primer? Let us know in the comments section below.