The Differences Between Litigating Personal Injury in Canada Versus the United States

united states and canadian flags

There are a number of differences between countries when litigating personal injury cases in Canada versus the United States. While the two legal systems generally share the same core values and principles and basic notions of rule of law, there are some major differences between the two systems. Canadians have a reputation of being less litigious than Americans, but the differences don’t stop there.

Court system

Canada has a three-court system, which includes superior, federal and provincial. Personal injury and car accident cases are legislated under the provincial court. In the United States, the federal court plays a larger role in these types of cases. Judges in Canada are also appointed by the federal or provincial government, as opposed to being elected, as they are in the States. This can lessen the influence of politics on a judge’s taking to the bench.

During the court procedures in Canada, claims are assigned to one court, which can result in different judges hearing the motions over the course of a civil action. In opposition, civil cases in the U.S. are assigned to one judge, who will preside over all court actions. It is also rare for Canadians to employ a jury system in the courts during a civil matter.

When assessing cases and history, Canadian courts not only look to Canadian judgments, but also what’s happened historically in foreign cases. The U.S., on the other hand, relies mainly on what’s happened in the U.S. when they have legal questions.

judges gavelThe Province of Quebec has a court system much different from the other Canadian provinces, which applies many of the civil law traditions of France.

In Canada, the pretrial process is much more restricted than it is for their U.S. counterparts. Examinations of witnesses in the United States allow for multiple witness testimony, whereas in Canada, only one witness is able to testify on behalf of each party. As well, examinations for discovery can’t exceed seven hours in Canada, so they are time-limited. The U.S. rules for depositions (as it is called in that country) are much broader and allow for more time and examination of witnesses and evidence.

Cost & Damages

Litigating cases in Canada is less expensive than what it would cost in the U.S. and this is mainly because the rules of procedure are reduced. As well, what the winner of a legal case will get in damages can be much less than what they would get in the U.S., although losers are often made to pay for legal costs. In Canada, the losing side of a dispute will be asked to pay legal costs to the winning side, which can typically include lawyer’s fees and disbursements. If the losing party refused a reasonable offer before judgment, these costs may be even greater, although punitive damages are an infrequent occurrence in Canadian courts. General damage awards for pain and suffering are capped at CDN$300,000 in Canada. In the U.S., the losing party is often penalized with compensatory and punitive damages, in a greater amount (often astronomically greater) than what is typically seen in Canada.

Filing a personal injury claim if you are a Canadian injured in the United States

If you’ve been hurt outside of Canada, there are limitations to whether you can get your personal injury case heard in a Canadian court. The defendants need to either live or carry on business in Canada in order for the case to be under the jurisdiction of the Canadian courts. When it comes to motor vehicle accidents, if the insurance companies for both parties are located in Canada or have Canadian subsidiaries, you are able to file your case in Canadian court.

The courts will look at other factors when determining jurisdiction, such as if the plaintiff is unable to pursue the matters outside of the country due to their extensive injuries. If they need medical attention in Canada as required because of the accident, the courts may decide to allow the case to be tried in a Canadian court.

Cross-border personal injury cases are complex and often the at-fault party in the U.S. may not have sufficient insurance to pay your claim due to lower minimum insurance requirements. Consulting a car accident lawyer is your best bet in getting your claim heard and your rights protected.

For more information about filing a claim if you have been injured through no fault of your own, contact Vancouver personal injury lawyer Tim Louis today at 604-732-7678.

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