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Maneuvering medical malpractice lawsuits in Canada: What you can expect

Wagner's Law Firm offers an overview of the stages involved in medical malpractice lawsuits in Canada
Wagner's Law Firm, located in Halifax, Nova Scotia, provides insight into the stages of a successful medical malpractice case. Photo via iStock

In the case of injury, illness, or death due to medical malpractice in Canada, legal routes exist to sue for damages. The court process is complex, so engaging experienced lawyers is essential. 

This article explores the different stages of medical malpractice lawsuits in Canada and how an experienced team can help you gain the compensation you deserve.

Wagner's Law Firm, located in Halifax, Nova Scotia, provides insight into the stages of a successful medical malpractice case.

1. Statement of Claim

The first step is filing a formal court document, known as a Notice of Action and Statement of Claim, naming the parties and detailing the facts or allegations. The filing party is referred to as the plaintiff(s), and defendants can include individual medical healthcare workers or healthcare facilities and organizations.

2. Statement of Defence

Defendants have a specified period to file a written response, the Statement of Defence, denying liability. This outlines their initial response to the allegations made by the plaintiff(s).

3. Discovery stage

After the Statement of Defence has been filed, the next stage of the litigation process is called “discovery", where all parties can better understand the details and facts of the opposition’s case. This stage includes the disclosure of documents and witness testimony, allowing both sides to assess evidence and build their case ahead of the trial. At this stage, either or both parties may decide to explore the possibility of a settlement agreement.

The two stages of the Discovery stage are:

  • Documentary discovery: the process where all parties in the case compile a list of relevant documents in their possession or control. This list is often known as an Affidavit of Documents, which confirms the list is a complete and accurate description of all documents in their possession or control.
  • Examinations for discovery or questioning: The second part of the discovery phase allows lawyers to question and seek answers under oath from opposing parties pertaining to the case. Questioning usually occurs outside the courtroom, with a stenographer or court reporter recording everything said.

4. Expert reports

This essential step involves collecting expert reports supporting opinion-based evidence provided by each party, usually authored by medical experts.

5. Preparing for trial

After the discovery stage, legal counsel may meet with a court-appointed judge to discuss the status of the litigation. These are often known as case management conferences, during which the judge discusses the facts of the case with counsel for all parties to determine whether a settlement is possible. There are also Trial Readiness Conferences that happen close to trial dates.

6. Mediation

While not mandatory in all jurisdictions, mediation involves a third party working with both parties to seek a settlement agreement.

A court-appointed judge can also act as a mediator. However, they would not rule if mediation was unsuccessful and the case went to trial. Success depends on the willingness of both parties to negotiate and find a financial agreement.

Even in cases where mediation is not mandatory, either party can request mediation at any point during the legal process.

7. Trial

When parties cannot agree on a settlement, the case proceeds to trial.

At trial, all parties present evidence to the judge or jury, who will then decide on the claim's validity. If the plaintiff succeeds, the judge or jury will rule on the damages due from the defendants.

The judge or jury will assess the evidence once it's all been presented before deciding. A judge will often take several months for a decision. Judgments are typically provided in writing, outlining the reasons, unless it's a jury trial.

The final ruling may not end the legal process, with the losing party having the right to appeal against the judgment with the Court of Appeal. Three Appellate Judges usually hear the appeal and rule based on the existing evidence except where special permission has been granted to present new evidence.

The legal process for pursuing lawsuits for medical malpractice is lengthy, due to the complexity of the cases and the time needed to collect evidence from expert reports and allow the judge time to consider their ruling. Finding an experienced legal team  is essential for navigating this process successfully.

To learn more about Wagner’s Law Firm, visit