Legal Representation in Civil Law Proceedings

What Is Civil Law?

Civil law is the branch of law that governs disputes between private parties (individuals, businesses, or organizations) and between private parties and government acting in a private capacity. It is sometimes called private law, and it stands in contrast to public law such as criminal law, which is concerned with conduct considered harmful to society as a whole. The purpose of a civil claim is not to punish; it is to resolve a dispute and, where someone has been wrongfully harmed, to compensate them.

In a civil case, the person who starts the lawsuit (the plaintiff) sues another party (the defendant), asking a court for a remedy. The most common remedy is an award of money (damages) intended to put the injured person, so far as money can, in the position they would have been in had the wrong not occurred. Courts can also grant non-monetary remedies such as injunctions. Because civil claims are private, the plaintiff must prove their case on a balance of probabilities: that it is more likely than not that the defendant is liable. This is a lower threshold than the criminal standard of proof beyond a reasonable doubt.

The Department of Justice Canada notes that the great majority of civil disputes are resolved without a trial; by one estimate, roughly 98 percent of civil suits never reach a courtroom, most being settled by agreement. Understanding the civil process therefore means understanding not just the trial that rarely happens, but the long sequence of steps that usually leads to a settlement.

Civil, Criminal, and Regulatory: Three Different Tracks

A single event, a serious medical error, for example, can engage more than one part of the legal system at the same time, and it is important not to confuse them, because each has a different purpose, a different decision-maker, and a different outcome.

Civil law

A civil claim is brought by the injured person to obtain compensation. The decision-maker is a court, and the outcome, if the claim succeeds, is a remedy: usually money damages. This is the track a medical malpractice lawsuit follows.

Criminal law

A criminal prosecution is brought by the state to hold a person accountable for conduct that is an offence against society. The decision-maker is a criminal court, the standard of proof is beyond a reasonable doubt, and the outcome is a finding of guilt or acquittal and, potentially, a penalty such as a fine or imprisonment. Criminal charges arising from medical care are rare and are entirely separate from any civil claim.

Regulatory and administrative law

A regulatory complaint, for example, a complaint to a College of Physicians and Surgeons, concerns a professional's conduct and competence. The decision-maker is a statutory regulator or tribunal, and the outcome is regulatory: a caution, conditions on a licence, suspension, or revocation. A College cannot order a practitioner to pay compensation to a patient. This is the subject of our Administrative Law page, and the practical difference between a complaint and a lawsuit is explained in our guide on college complaints versus lawsuits.

These tracks are not mutually exclusive. The same incident can give rise to a civil claim for compensation and a regulatory complaint about the practitioner, pursued in parallel.

Medical Malpractice as a Civil Negligence Claim

In Canada's common-law provinces (which includes all four Atlantic provinces) medical malpractice is not a standalone category of law. It is an application of the tort of negligence, the same body of law that governs most personal-injury claims. To succeed, a plaintiff must prove four distinct elements, each on the balance of probabilities.

The four elements of a negligence claim

• Duty of care: that the defendant owed the patient a legal duty to take reasonable care. In the clinical setting this is usually straightforward: a physician–patient relationship creates a duty.
• Breach of the standard of care: that the care provided fell below the standard of a reasonably competent professional in the same field and circumstances. What the standard of care means and how it is measured is the heart of most claims.
• Causation: that the breach actually caused the harm. Canadian courts generally apply the "but for" test: but for the negligence, would the harm have occurred? Causation is frequently the most difficult element to prove.
• Damages: that the patient suffered real, measurable harm. Negligence is not actionable without proof of actual damage; a careless act that causes no harm does not give rise to a claim.

All four must be present together. A clear error that caused no harm, or serious harm that was not caused by any breach, will not support a claim. We explain the framework in plain language in our guide to the four elements, and the broader practice area in our Medical Malpractice overview.

Where Civil Claims Are Heard: Canada's Court System

Canada has a four-level court structure. Most civil claims of any size are heard in the provincial superior trial court, with a right of appeal to the provincial court of appeal and, by leave, to the Supreme Court of Canada as the final court of appeal.

The superior trial court has a different name in each Atlantic province: it is the Supreme Court (Trial Division) in Nova Scotia, Prince Edward Island, and Newfoundland and Labrador, and the Court of King's Bench in New Brunswick. Smaller claims may be heard in a small claims court. A medical malpractice action, because of its value and complexity, is almost always commenced in the superior trial court.

The Stages of a Civil Lawsuit

Civil litigation follows a structured sequence governed by each province's rules of civil procedure. While timelines vary, the stages are broadly consistent across the common-law provinces.

1. Pleadings

The lawsuit begins when the plaintiff files and serves a statement of claim setting out the facts alleged and the relief sought. The defendant responds with a statement of defence. Together these documents define the issues in dispute.

2. Discovery

Discovery is usually the longest and most important phase. Each side must disclose relevant documents (documentary discovery) and answer questions under oath at an examination for discovery (oral discovery). In a malpractice case this is where the medical records, expert opinions, and witness accounts are tested, and where each party learns the strengths and weaknesses of the other's case.

3. Motions

Before trial, either party may bring interlocutory motions: applications asking the court to decide procedural or preliminary issues, to compel disclosure, or in some cases to dispose of all or part of the claim.

4. Mediation and settlement

The parties may negotiate a settlement at any point, and most cases settle before trial. Many courts require or encourage mediation, a confidential process in which a neutral third party helps the parties try to resolve the dispute. A settlement ends the lawsuit on agreed terms (usually a payment) without a trial or a formal finding of liability.

5. Trial

If the case does not settle, it proceeds to trial, where the evidence is presented and a judge (or, less commonly in malpractice cases, a jury) decides the outcome under strict rules of evidence and procedure.

6. Judgment and appeal

The court delivers judgment, deciding liability and, if the claim succeeds, the amount of damages. A dissatisfied party may appeal to the provincial court of appeal on questions of law, and from there, by leave, to the Supreme Court of Canada.

Limitation Periods: Acting in Time

Every civil claim is subject to a limitation period: a legal deadline after which the claim can no longer be brought. Missing it is usually fatal to the claim, regardless of its merits, so this is one of the first things to assess.

Across the common-law provinces the modern pattern is a basic limitation period of two years, running not necessarily from the date of the negligent act but from the date of discoverability, when the claimant first knew, or ought reasonably to have known, the facts giving rise to the claim. This matters enormously in medical cases, where an injury or its cause may not become apparent until well after the treatment. A separate "ultimate" limitation period sets a long-stop deadline that runs from the act or omission regardless of discovery.

The Atlantic provinces differ in the detail

• Nova Scotia and New Brunswick follow the modern model: a two-year basic period running from discoverability, and a fifteen-year ultimate period.
• Newfoundland and Labrador sets a two-year period for personal-injury claims, with a thirty-year ultimate cut-off.
• Prince Edward Island uses an older scheme in which the limitation period depends on the type of action, rather than a single uniform two-year discoverability rule, so the analysis there is different.

Remedies and Outcomes: What a Civil Claim Can Achieve

A successful civil claim results in an award of damages, whether by negotiated settlement or by judgment after trial. Canadian courts divide compensatory damages into two broad categories.

Pecuniary damages

These compensate measurable financial losses: the cost of future medical and attendant care, lost income and loss of future earning capacity, and out-of-pocket expenses. In serious cases the cost-of-future-care component is often the largest part of an award.

Non-pecuniary damages

These compensate pain and suffering, loss of amenities, and loss of enjoyment of life: harms that have no precise market value. In its 1978 "damages trilogy" (the companion cases of Andrews, Thornton, and Arnold), the Supreme Court of Canada placed an upper limit, or cap, on non-pecuniary damages, set at $100,000 in 1978 dollars and adjusted for inflation since (now in the range of several hundred thousand dollars). The cap does not apply to certain intentional wrongs.

Honestly assessing what a claim may be worth is one of the hardest parts of this work, and early figures are unreliable; we explain why in our guide on what a claim is worth. Most claims end in settlement; where a matter goes to judgment and succeeds, the court may also award the successful party a portion of its legal costs.

Does an Apology Mean Fault?

Patients and families are sometimes told that a provider's apology proves wrongdoing, while providers sometimes fear that saying "I'm sorry" is an admission of liability. Apology legislation addresses this. In Nova Scotia and Newfoundland and Labrador, an Apology Act provides that an apology does not constitute an admission of fault or liability and is not admissible in court as evidence of fault. New Brunswick and Prince Edward Island do not have a standalone Apology Act. Either way, an expression of sympathy is not, on its own, proof of negligence; the four elements still have to be established with evidence.

Civil Claim or Administrative Process? Knowing the Difference

One of the most common points of confusion is whether a problem belongs in the civil courts or in the administrative and regulatory system. The simplest way to tell them apart is to ask what outcome you are seeking.

• If the goal is compensation for harm caused by negligence, that is a civil claim, decided by a court, with damages as the remedy.
• If the goal is to have a practitioner's conduct reviewed, or to obtain statutory benefits such as workers' compensation or disability benefits, that is an administrative matter, decided by a regulator or tribunal, with regulatory or benefit outcomes rather than damages.

A regulatory complaint will not produce compensation, and a civil lawsuit will not discipline a practitioner, but the same incident can support both at once. Our Administrative Law page explains the regulatory and tribunal side in detail, and our guide comparing a college complaint to a lawsuit walks through how to choose.

Frequently Asked Questions

Is medical malpractice a civil or a criminal matter?

What is the difference between a civil claim and an administrative proceeding?

How long do I have to start a civil claim in Atlantic Canada?

Will my case go to trial?

What can I recover in a civil claim?

Does a doctor's apology mean they admit fault?

References and Resources

The following sources are official Canadian government, government-funded, or Wikipedia references. External links open in a new tab.

Government of Canada

• Department of Justice Canada — What Is the Law (private vs. public law)Defines private (civil) law in contrast to public law such as criminal law.
• Department of Justice Canada — Civil and Criminal CasesStandards of proof; notes most civil suits settle without trial.
• Department of Justice Canada — The Judicial StructureThe hierarchy of Canadian courts and the role of the Supreme Court of Canada.
• Department of Justice Canada — How the Courts Are OrganizedThe four levels of court and their civil jurisdiction.

Provincial Legislation — Limitation Periods and Apologies

• Nova Scotia — Limitation of Actions Act (2014, c. 35)Two-year basic and fifteen-year ultimate limitation periods, with discoverability.
• New Brunswick — Limitation of Actions Act (2009, c. L-8.5)Two-year basic and fifteen-year ultimate limitation periods, with discoverability.
• Newfoundland and Labrador — Limitations Act (SNL 1995, c. L-16.1)Two-year limitation for personal-injury claims; thirty-year ultimate cut-off.
• Prince Edward Island — Statute of Limitations (c. S-7)Limitation periods set by type of action (an older scheme than NS/NB).
• Nova Scotia — Apology Act (2008, c. 34)An apology is not an admission of fault or liability and is inadmissible as evidence of fault.
• Newfoundland and Labrador — Apology Act (SNL 2009, c. A-10.1)An apology is not an admission of fault or liability and is inadmissible as evidence of fault.

Further Background

• Wikipedia — NegligenceThe elements of negligence: duty, breach, causation, and damages.
• Wikipedia — Medical malpracticeMedical malpractice as a negligence-based tort.
• Wikipedia — Canadian tort lawNegligence and damages in the Canadian common-law context.
• Wikipedia — Discovery (law)Documentary and oral discovery within the litigation process.