We have a tendency here in the States to be self-absorbed and forget other countries exist. But if a country is dedicated to self-improvement for its people and society, studying our neighbors as well as comparing ourselves with them is key. We all know that Canada and the United States are close in multiple ways: geography, ethnocultural heritage, as well as philosophy (decidedly liberal Atlantic). That said, they are also two very different countries, and this difference is showcased in the legal realm, especially in the civil and criminal litigation sector. Lawsuits are prevalent in both societies, and in our modern, lawsuit-heavy legal stance, both countries contribute to the “sue now” philosophy. There are multiple differences to the litigation process in both countries, but what is the reality of litigiousness in each country?
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Changes over time
The raw data paints a somewhat clear picture. In 2008, Chubb Insurance conducted research to see if Canadian and US private companies had to deal with a similar rate of lawsuits. The findings were generally surprising, as it was always thought that Canadians were less litigious and less vulnerable to litigation than the United States. The survey found that litigation trends were taking steps to mirror America, mostly in specialty insurance areas including Employment Practices Liability, and Errors and Omissions.
Ten years later, in 2017, one cannot argue that the US is not as litigious as it once was. Harvard Law School conducted a study that found the numbers of suits per 100,000 people filed by similar countries still numbered fewer than in America: Australia at 1,542; Canada at 1,450; and Japan at 3,681. The US saw a staggering 5,806 suits filed per 100,000 people. That’s nearly three times the amount of Canada.
Two systems
One of the main things to understand with this argument is that these are two separate legal systems with slight differences between them. First and foremost, the cost of litigation is much less in Canada, which is mainly due to the rules of procedure that govern litigation within the jurisdiction. For example, US litigants have broader powers to ensure the gathering of documentation and evidence, while Canadian law is much more restricted. Likewise, the Canadian policy is to pay for at least some of the successful litigants’ court fees, which has tended to encourage litigants to consider settlement offers. In the US, you might spend $50,000 in legal fees, even if you’ve been deemed successful. Do you think that a Toronto personal injury lawyer would do that to their clients? Another difference includes the rarity of jury trials in Canada.
Federal vs independent
The judicial structure of the countries differ as well and also adds weight to the argument of which country is more litigious. Courts in Canada are superior courts in the same system, meaning that all courts are banded to the Supreme Court of Canada with all judges appointed by the Canadian government. There is also a small federal traveling court that is used for limited federal matters.
The US, on the other hand, is more complicated thanks to the constitutional status enjoyed by the states. Fifty separate independent court systems elect judges and are sovereign to apply and interpret their state laws. State like California, New York and Florida consistently rank among the most litigious states. Litigation services is an industry and court reporters in West Palm Beach, for example, are well-used. But the states are all kept in line to a degree: the Supreme Court of the US has the final say in federal legislation as well as any subject that goes against the US Constitution. The Supreme Court of Canada has final authority over all public and private law.
Damages awarded
Perhaps the most profound difference lies in the damages awarded to the successful party. While the United States legal sector has heard cases with stigma attached to them, exemplified by the McDonald’s hot coffee case, which netted the client $640,000 (the original punitive decision was $2.7 million). Canada has capped the general damages a party could receive for pain and suffering in a personal injury action to less than CDN $300. It is unheard of in Canada to see the types of punitive damage awards that are brought up in the US court system.
So, what does that mean? For Americans, litigation is much more of a gamble, a bigger expense with a potentially bigger payoff. Can the average Joe afford to go down that path? They seem to be able to. In Canada, the process is simpler and stricter, but less rewarding if you win. Critics of the “sue now” philosophy might suggest that the US look closer at Canadian for policies of discouragement.