{"id":7577,"date":"2021-12-30T18:50:09","date_gmt":"2021-12-30T23:50:09","guid":{"rendered":"https:\/\/360mediations.com\/en\/?p=7577"},"modified":"2022-01-26T11:50:19","modified_gmt":"2022-01-26T16:50:19","slug":"personal-injury-claims-in-small-claims-court","status":"publish","type":"post","link":"https:\/\/360mediations.com\/en\/personal-injury-claims-in-small-claims-court\/","title":{"rendered":"Personal Injury Claims in Small Claims Court:"},"content":{"rendered":"

The Nuts and Bolts<\/b><\/h2>\n\n\n\n
Since its inception over 200 years ago, the Small Claims Court (often referred to hereinafter as the \u201cCourt<\/strong>\u201d) has generally been considered the forum for people to resolve small contractual disputes,[1]<\/a> and although the Court will always remain contract-centric, it is also a viable forum to resolve personal injury claims, which this article will explore.<\/p>\n

The rapid rise in the Court\u2019s monetary jurisdiction, from $10,000 to $25,000 on January 1, 2010, to $35,000 on January 1, 2020, undoubtedly makes the Court a more viable option for many personal injury cases.<\/p>\n

This paper will assist litigants and jurists through the intricacies unique to prosecuting and adjudicating bodily injury claims before the Court.<\/p>\n

The paper ends with a helpful chart of sample cases that were, or could have easily been, brought before the Court for adjudication.\u00a0 It is organized by the case type (i.e.: assault\/battery, defamation, motor vehicle, etc.), making it easy to reference those cases in order to see what elements made them conducive for adjudication before the Court.[2]<\/a><\/p>\n

This paper is not intended to assess whether the Small Claims Court process is the best mechanism for adjudicating any particular personal injury claim because parties do have many options to try and obtain a cost effective and expeditious result for some of the \u201csmaller-valued\u201d cases such as the simplified procedure, summary trials, mini-trials and motions for summary judgment.\u00a0 This paper is simply a guide to explain how the Small Claims Court is but one option, and one that happens, for better or worse, to be free of any formal Affidavit of Document requirements, mandatory mediation requirements, examinations for discovery, juries, and any potentially profound costs consequences.<\/td>\n

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Authored by David M. Jos\u00e9<\/strong>, B.A., LL.B.\u00a0 Since his Call to the Bar in 1995, David has represented both plaintiffs and defendants in personal injury claims, and today works exclusively as a mediator to help litigants resolve their civil litigation disputes.\u00a0 David is also a Small Claims Court Deputy Judge in Ontario, and this paper melds David\u2019s interests in the topic, from both the perspective as a litigant and as a jurist.<\/em><\/p>\n

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Index<\/strong><\/h2>\n\n\n\n
<\/td>\n\n

I. Personal Injury Claim Defined<\/a><\/strong><\/h3>\n

A. Defining a Personal Injury Claim<\/a><\/h3>\n

II. Suitability Before the Court<\/strong><\/a><\/h3>\n

B. Personal Injury Claims That Are Well Suited for Adjudication Before the Court<\/a><\/h3>\n

III. Procedural Aspects<\/a><\/strong><\/h3>\n

C. Brief Overview of the Small Claims Court Process<\/a><\/h3>\n

D. The Interplay Between the Monetary Jurisdiction of the Small Claims Court and How Damages are Assessed<\/a><\/h3>\n

E. Pleadings<\/a><\/h3>\n

The Need to Waive Recovery Beyond the Monetary Limit<\/a><\/h3>\n

The Prohibition against Splitting the Case<\/a><\/h3>\n

Each Plaintiff has a Distinct and Separate Claim up to the Monetary Limit<\/a><\/h3>\n

Be Mindful that the Amount Claimed Can Impact the Amount of Costs Awarded<\/a><\/h3>\n

IV. Damages<\/a><\/strong><\/h3>\n

F. Summary of the Common Types of Damages Claimed<\/a><\/h3>\n

G. The Reductions that Follow<\/a><\/h3>\n

H. Special Considerations for Motor Vehicle Accident Personal Injury Claims<\/a><\/h3>\n

V. Some Potentially Thorny Issues<\/strong><\/a><\/h3>\n

I. Defence Medicals<\/a><\/h3>\n

J. Expenses Paid from Joint Bank Accounts<\/a><\/h3>\n

K. Ohip Subrogated Claims<\/a><\/h3>\n

L. Is Each Separate Defendant Liable up to $35,000 when Damages arise from One Incident?<\/a><\/h3>\n

VI. Examples of Personal Injury Cases Before the Court<\/a><\/strong><\/h3>\n

VII. Chart of Cases<\/a><\/strong><\/h3>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

<\/a>I. Personal Injury Claim Defined<\/strong><\/h2>\n

<\/a>A. Defining a Personal Injury Claim<\/h2>\n

The term \u201cbodily injury\u201d or \u201cpersonal injury\u201d generally refers to any injury, damage, or impairment to the body or person and, for the purpose of this paper, includes death.\u00a0 When individuals die, claims can be advanced by the deceased\u2019s estate and\/or by the deceased\u2019s relatives as defined under the Family Law Act<\/em>, R.S.O. 1990 c.F.3 (herein the \u201cFLA<\/strong>\u201d).<\/p>\n

Bodily injury or personal injury claims exist even when there is no physical<\/em> harm or injury.\u00a0 A person wrongfully incarcerated may have been treated with silk gloves, while nonetheless still sustaining a compensable personal injury when their body or person was unlawfully detained. \u00a0Reputations can be harmed and be compensable despite any physical bodily injury (i.e.: defamation).<\/p>\n

Similarly, the injury does not always have to be physical<\/em> in nature \u2013 it can be a psychiatric<\/em> injury alone, such as nervous shock, as was the case in DeBroyie<\/em> (Next Friend of) v.<\/em> Drenth<\/em>, [1982] O.J. No. 869 (Sm. Cl. Ct.), where a young boy was horrified watching his brother get hit by a car while they were playing, leaving the plaintiff child unable to sleep on his own, afraid of cars, and unable to cross the street.<\/p>\n

Essentially all of the foregoing features simply distinguish these losses from commercial and\/or contractual losses.\u00a0 This said, on occasion a breach of contract can attract personal injury damages.\u00a0 See for example Richardson v. AEA Designer Group Inc.<\/em>, [2007] OJ No 5036 (Sm. Cl. Ct.) where a husband and wife were awarded $1,000 for mental anguish when the defendant breached the contract to provide them with a wedding video (that was lost due to technical issues).<\/p>\n

<\/a>II. Suitability Before the Court<\/strong><\/h2>\n

B.<\/a>\u00a0 Personal Injury Claims that are Well Suited for Adjudication Before the Court<\/h2>\n

The type of personal injury case that would be well suited for adjudication before the Court is potentially boundless, such that the attempt of this paper is to simply give the reader the tools to assess the factors that go into this assessment.\u00a0 The following list of examples, although not exhaustive, will explain the analysis and reasoning behind why such cases are well suited for adjudication by the Court, and hopefully this will leave the reader with the skill-set for assessing any personal injury case that is likely to share certain elements within all of these examples:<\/p>\n