Personal Injury Law: Canada vs. the U.S.
Many of us enjoy watching legal-themed shows on television, and this can lead us to believe we have an understanding of the role personal injury lawyers play and the way personal injury law cases proceed. However, most of the shows we see are based on American law; in Canada, the way personal injury suits work can be very different.
To begin with, the structure of our two court systems is different. Canada has a three-court system, which includes superior, federal and provincial courts. Personal injury cases are heard in provincial court.
However, in the United States, the federal court plays a larger role in these types of cases. Judges in Canada are appointed by the federal or provincial government; while American judges are elected. In Canada, claims are assigned to a particular court, which means that different judges may hear motions over the course of the action. In the US, however, cases are assigned to a particular judge who presides over all of the actions.
In Canada, jury trials for these types of cases are rare, and are usually tried by a judge only. A party may request a jury trial, but Canadian courts have broad discretion to refuse these types of requests, especially if it’s felt that the issues involved are too complex. And note that courts in the province of Quebec are different than those in the rest of Canada, with many of their civil law traditions based on the judicial system of France.
Significant Procedural Differences
Another major difference between the U.S. and Canada is that in Canada, the winning party in a suit is usually compensated for at least some of its legal costs by the losing party. The effect of this policy is to discourage nuisance or frivolous suits, and to encourage both parties to make and/or consider reasonable offers to settle. The court generally awards the successful party legal costs in one of two ways:
- Partial indemnity, approximately 30%-50% of actual legal costs
- Substantial indemnity, approximately 65%-80% of actual legal costs
Another difference between the two systems comes into play during the pre-trial period. In the U.S., the parties have broad powers to obtain oral and documentary evidence. This means that litigants may spend a great deal of time and money uncovering evidence. Canadian rules, on the other hand, limit this power.
In Ontario, for example, Examinations for Discovery (which are most often known as “depositions” in American courts) are generally limited to one person on behalf of each party to the litigation. The right to examine more than one individual per party is not automatic, and litigants must receive permission from the court. (This permission isn’t regularly granted.) The Examinations for Discovery in Ontario must not be any longer than seven hours, unless both parties agree otherwise, or unless the court orders an extended examination. In cases involving claims of $100,000.00 or less, this time limit is even shorter, with a limit of two hours of examination time that cannot be extended.
In addition, oral and documentary production is to be “proportional”. This means that the court will determine whether a party must answer a question or produce a document by assessing whether the time required would be unreasonable, whether the expense would be unjustified, whether answering the question or producing the document would cause undue prejudice or would interfere with the orderly progress of the action, and whether the information is readily available to the requesting party from another source. There is no automatic right to secure documents or oral evidence from non-parties, and there is a list of conditions to be met if one party desires to do so. These rules governing the pre-trial period have the effect of making discovery costs in Ontario much more affordable than in the U.S.
And of course, damage awards in the U.S. are much higher than those in Canada. In fact, the Supreme Court of Canada has capped the general damages with regard to pain and suffering in a personal injury action at $300,000 (although this amount is indexed to inflation.) And the substantial punitive damage awards that make the news in the U.S. are basically unheard of in Canada.
Pursuing Legal Action
If you are an Ontario resident who has sustained an injury in the U.S., you may be eligible to move your trial to Canada. The Supreme Court of Canada established four factors to help determine which cases may be heard in this country. These are:
- The wrongful act was committed in the province
- The defendant lives in or is a resident of the province
- The defendant carries out business in the province
- A contract connected with the dispute was made in the province
The idea of whether or not it is “convenient” to hold proceedings in Ontario may also come into play. The best course of action for you is to consult with an Ontario personal injury lawyer who has experience working with cases on personal injury law in Canada vs the U.S. They will be able to advise the best steps to take regarding these matters of personal injury law.