What Physicians Need to Know about Litigation and Civil Proceedings

Ontario physicians may find themselves engaged in a civil proceeding, in addition to regulatory complaints.

Physicians may be the subject of a civil action in various contexts, such as:

  • Alleged malpractice;
  • Disputes about sale, re-configuration or dissolution of clinics/medical businesses;
  • Disputes over privacy and/or patient records;
  • Employment issues;
  • Enforcement of contracts;
  • Privacy

It is important that a physician is prepared to navigate the court system in bringing or responding to a civil action.

A civil proceeding consists of different key stages. Depending on the monetary amount claimed, an action can be brought at the Ontario Superior Court of Justice under the standard or simplified rules, or in the Small Claims Court.

Initially, the parties must deliver pleadings in a civil action. The pleadings set out the framework of the legal issues and arguments in a given action. The plaintiff commences a civil action by filing and serving a Statement of Claim on a defendant or defendants. A defendant must respond by serving a Statement of Defence on all parties. Each level of court has its own distinct rules and timelines and a party must abide by the rules of procedure.

In an Ontario Superior Court of Justice proceeding, parties will engage in examinations for discovery. Discoveries allow counsel for each party to question other parties about matters relating to the dispute. Counsel can request undertakings from a party being examined, which are requests for the party to produce documents or follow up on a line of inquiry. Rules of procedure govern conduct at discoveries, which are often adversarial in nature. Parties can bring motions to compel the production of documents in the event that a party refuses.

In Small Claims Court actions, parties must attend a mandatory settlement conference. Settlement conferences are presided over by a deputy judge. They are private discussions between parties to an action to see whether a resolution or settlement can be reached.

The final stage of a civil proceeding is trial. Trials require significant preparation. At a trial, a party will have the opportunity to present their case to a judge or jury and call evidence in support of their position. The judge or jury then renders a decision in regards to the dispute.

Following a trial, a party may seek leave to appeal a decision to a higher court. The appropriate court of appeal depends on the context of the litigation.

The vast majority of cases at all levels of court settle prior to reaching the trial stage, whether through a formal settlement or mediation process or through informal negotiations between parties and their counsel.

Civil litigation requires careful consideration of costs and benefits, as well as legal strategy at each stage of a proceeding. It is important that a party is properly equipped to advocate for its interests in an adversarial setting. We routinely assist physicians in bringing civil actions and defending themselves in civil proceedings.

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