Litigation: Civil Litigation in Canada and the United States - Part 1

The goal of civil litigation in Canada and in the United States is the same: justice for the parties involved. However, there are key differences regarding how that that justice is administered and the practices and procedures that may be used in litigation.

Nine of Canada's ten provinces, and all three of its territories, are common-law jurisdictions and, as such, trace their legal traditions to England. In contrast, Quebec is a civil law jurisdiction and traces its legal traditions to the French Napoleonic Code. Substantive law, and certainly litigation procedure, in Quebec thus is often very distinct from that in the rest of Canada.

But even in Canada's common-law jurisdictions, which on first blush might seem to offer familiar ground to American lawyers and clients, civil litigation can differ in many important ways from that in the United States. A few of these differences are summarized below and several of the most important additional differences (regarding documentary and oral discovery, the operation of the "loser pays" cost regime and the cost consequences of offers to settle) will be addressed in the next two articles in this series.

The Courts

Almost all civil litigation in Canada takes place in the provincial superior courts (e.g., the Ontario Superior Court of Justice, the Alberta Court of Queen's Bench, etc.). The Federal Court of Canada has only a limited jurisdiction (e.g., regarding immigration, copyright and certain other areas). Every province has a Court of Appeal which hears appeals from that province's superior courts. Appeals from Court of Appeal decisions are heard by the Supreme Court of Canada but only if the Supreme Court grants leave to the appellant (which is typically only done for matters of clear national importance). Every judge in the above process is appointed by the Canadian government. No judge in Canada is elected to his or her post. "Political" appointments to the bench are very rare. Most judges are highly-experienced lawyers (typically former litigation lawyers but often former corporate solicitors and sometimes distinguished legal academics).

Jury Trials

There is no constitutional right to a jury trial of civil case in Canada. In practice, jury trials are quite rare in Canadian civil litigation. Indeed, in some areas of law jury trials are precluded by statute. Civil juries are somewhat more common in actions involving personal injury and defamation. A jury notice (seeking a jury trial in a civil action) may be struck by the court in response to a motion by a plaintiff or a defendant and the grounds to do so include "complexity" (e.g., the expert or other evidence will be too complex for a jury to properly understand). Jury trials are almost unheard of in corporate/commercial/contractual disputes.

Punitive Damages

An award of punitive damages is rare in Canadian litigation and such an award is effectively unavailable in typical contractual or negligence actions, absent malicious, vindictive or exceptionally high-handed misconduct by a defendant. Even in such cases, punitive damage awards in excess of $1 million are very rare.

Barristers and Solicitors

In Canada's common-law jurisdictions, lawyers are technically both barristers and solicitors. At the risk of over-simplifying, barristers gown and attend court - just like an American "trial attorney" but with the addition of traditional barristers' attire (gown, waistcoat, winged shirt, collar tabs, etc. - unlike English barristers, Canadian barristers do not wear wigs). The solicitor side of the profession (e.g., corporate lawyers, real estate lawyers, etc.), though "called to the bar" as barristers, may not even own a gown. With unique exceptions (e.g., Crown Attorneys, who prosecute criminal charges) the common American term "attorney" is not used to refer to Canadian barristers and solicitors.

Read Berkely Sells' next column.

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Berkley Sells

Berkley Sells is a partner at Fasken Martineau. He practices civil litigation with a focus on corporate/commercial disputes and internet litigation.

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