Can you sue a lawyer or paralegal in Ontario Small Claims Court? The answer is yes and no. Yes, you can sue them for a few reasons like anybody else. No, you cannot sue them for professional (legal) malpractice.
Legal malpractice is the term for misconduct, negligence, breach of fiduciary duty, or breach of contract by a lawyer or paralegal that causes damage or harm to their client. A lawyer or paralegal has the duty, in all dealings and relations with a client, to act with honesty, good faith, fairness, integrity, and fidelity.
When Small Claims Court is suitable
While you cannot sue a lawyer or paralegal for professional malpractice in Ontario Small Claims Court, you can sue them for issues like:
- Breach of Contract – Not fulfilling the terms of a retainer agreement.
- Overbilling or Unjustified Fees – Charging for services not provided.
- Failure to Meet Deadlines – Missing important court deadlines that negatively affect your case.
- Conflict of Interest – Acting against your interests in a way that breaches ethical obligations.
- Breach of contract – If they failed to complete services promised in a retainer agreement.
- Negligence in administrative matters – If they lost your documents or failed to meet deadlines that caused minor financial loss.
When Small Claims Court is not suitable
If your damages exceed $35,000, you should file in the Superior Court of Justice instead. Small Claims Court does not handle complex legal malpractice cases, such as those requiring expert testimony on legal errors or ethical breaches.
Steps to Sue a Lawyer or Paralegal in Small Claims Court
Gather Evidence
- Retainer agreement, invoices, and communications (emails, letters, text messages).
- Proof of negligence (e.g., missed deadlines, incorrect legal advice).
- Financial loss documentation (e.g., receipts, court orders, contracts).
File a Plaintiff’s Claim (Form 7A)
- Clearly state how the lawyer/paralegal’s actions caused financial harm.
- Provide supporting evidence.
Serve the Defendant
Ensure proper service of the lawsuit documents to the lawyer/paralegal.
Prepare for Court
Be ready to explain your claim, provide evidence, and respond to arguments.
Alternative Options
- File a Complaint with the Law Society of Ontario (LSO) – If the issue involves ethical misconduct or unprofessional behavior, you can report the lawyer or paralegal to the LSO instead of suing.
- Seek Mediation or Arbitration – Some legal disputes can be settled without court action.
Can you sue a lawyer or paralegal for professional malpractice in Ontario Small Claims Court?
The short answer is no — Ontario Small Claims Court does not handle professional malpractice claims against lawyers or paralegals. Here’s why:
Why Small Claims Court is NOT suitable for malpractice Claims
- Small Claims Court does not handle complex legal issues: Legal malpractice (also called professional negligence) often requires expert testimony to prove that the lawyer or paralegal failed to meet professional standards. Small Claims Court does not allow expert witnesses or complex legal arguments.
- Professional negligence cases must go to the Superior Court of Justice: If you are alleging that a lawyer or paralegal’s actions caused serious financial loss due to professional misconduct, you need to sue in the Superior Court of Justice, not Small Claims Court.
- Malpractice claims often exceed the Small Claims Court limit ($35,000): Even if your damages are below $35,000, professional malpractice is still outside Small Claims Court jurisdiction.
Alternatives for Professional Malpractice Claims
If you believe a lawyer or paralegal was professionally negligent, you have these options:
- File a Lawsuit in the Superior Court of Justice: If your claim involves serious negligence that caused financial loss, damages, or ethical misconduct, the Superior Court of Justice is the proper venue for suing a lawyer or paralegal.
- File a Complaint with the Law Society of Ontario (LSO): The Law Society of Ontario (LSO) regulates lawyers and paralegals. If you believe they acted unethically or incompetently, you can file a complaint, which may result in disciplinary action.
- Negotiate or Seek Mediation: Some disputes can be settled without court action through mediation or negotiation.
Some explanations about professional malpractice claims
Professional malpractice refers to negligence or misconduct by professional persons, such as lawyers, doctors, dentists, accountants, financial advisors, investment companies, insurance agents and other professionals. Professional malpractice is an area of legal practice that deals with an individual professional’s or a business’ wrongdoing that causes injury or damage. The failure to meet standard of conduct or a standard of care that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of that wrongdoing.
Examples of professional malpractice are breach of duty, mismanagement, omissions, errors, misconduct, misrepresentation, fraud, careless delivery of services and performance of technical or medical procedures. Professional malpractice is an act or continuing conduct of a professional which does not meet the standard of professional competence and results in provable damages to their client.
Legal malpractice:
A lawyer or paralegal must possess the legal skill and knowledge that is ordinarily possessed by members of the profession. Legal malpractice occurs when a lawyer or paralegal acts in their own interest instead of interests of their clients. A common basis for a legal malpractice claim arises where a lawyer or paralegal misses a deadline for a filing of a paper with the court and this error is related to the loss of the client’s cause of action.
Medical malpractice:
Medical malpractice is professional negligence by act or omission by a health care provider (doctors, nurses, caregivers, dentists and other health related professionals) in which care provided deviates from accepted standards of practice in the medical community and causes injury to the patient, with most cases involving medical error. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice.
Situations for Filing a Claim for Professional Malpractice
Sometimes a professional causes damage or harm by being ignorant, careless, negligent, or untruthful. We feel like a professional has done something wrong to us or our family but think that it is no use to complain against the powerful professional. But in fact, those professionals are responsible for their wrongdoings. They may be required to account for their actions or failure to act to governmental, professional or licensing organizations responsible for enforcing required standards. If you believe that professional wrongdoing was the cause of the damage or harm you have suffered there might be a case to be compensated for your losses. This may include payment for pain and suffering, economic losses including past and future income, medical expenses, and more.
A claim for professional malpractice basically asserts that the professional involved failed to act like other professionals would have acted in the same of similar circumstances. It is not just medical professionals who are liable for malpractice. There are many other professionals that rely on a high amount of education and finesse which can also be the source of malpractice. For example, accountants must uphold strict standards of monitoring your finances. If accountants fail to follow the accounting principles, this can reflect badly on your account when it is audited. This can result in legal damages if they do not correctly keep your records, or it can result in actual financial losses and damages. One more example: architects and engineers take people’s lives in their hands when they are building and making plans. If an architect does not correctly the weights of the materials or the angles at which they should place the supporting beams, the structure can collapse and injure those in and around it.
A professional is liable for fraud (except when the client caused the professional to commit fraud) and is generally liable for any damages resulting to the client by their negligence. Moreover, a professional is responsible for the doings of their associates, assistants, and partners and may be liable for their doings if they result in losses to the client.
Negligent errors are most commonly associated with professional malpractice. An error or omission may be through negligence, ignorance (when the professional should have known), or intentional wrongdoing. This category is based on the premise that a professional has committed an error that would have been avoided by a competent professional who exercises a reasonable standard of care.
Professionals, who give improper advice, improperly prepare documents, or fail to file documents on time, may be charged with professional malpractice.
Many professional malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional handling of the professional-client relationship leads to negligence claims that are not based on the actual services provided.
Another area of professional malpractice involves fee disputes. When a professional sues their client for professional’s fees, many clients assert professional malpractice as a defence.
Professional malpractice claims require experts
Professional malpractice claims require involving experts from appropriate industry to thoroughly examine details, to find out if any professional standards were broken and to provide the strongest possible representation in Small Claims Court case. In order to prove professional malpractice there may be testimony of an expert as to the acceptable standard of care applied to the specific act or conduct which is claimed to be malpractice and testimony of the expert that the professional did not meet that standard. The defendant then can produce their own expert to counter that testimony.
