How The Canadian Legal System Differs From American / by Ronald Davis, JD

This is a highly simplified, non-exhaustive listing of some key differences between the Canadian and American legal systems. I’ve left out many details. I simply mean to impart a basic understanding of the Canadian system to someone who knows the American one.

1. Political System

  • Canada is a parliamentary confederation of provinces and territories. There is one federal criminal law and Criminal Code, and they apply universally.

  • Bankruptcy, immigration, and some other matters are governed by one uniform federal law.

  • Other areas of law are provincial.  All provinces follow a system based on British Common Law,  except Quebec, which has a French-inspired Civil Law system. There is little conflict between provincial and federal jurisdictions.

2. Structure of the Court System

  • Provincial courts (in Ontario they named the Ontario Court of Justice) deal with less serious criminal and civil matters. Provincial court rudges court are appointed by the province.

  • Superior courts (the Ontario Superior Court of Justice) deal with most remaining matters. Superior court judges are appointed by the federal government.

  • Each province has a Court of Appeal (not Appeals) whose decisions are binding on the provincial and superior courts. Court of Appeal judges are appointed by the federal government.

  • There is a Canadian Federal Court and Federal Court of Appeal. Their jurisdiction is limited and specialized. There is also a Tax Court. These courts are the domains of relatively few lawyers.

  • At the top of all courts is the Supreme Court of Canada. Its decisions are binding on all courts. Subject only to Parliament and the Constitution, it has final authority over all public and private law throughout Canada.

3. Judges

  • Although there is judicial independence in Canada, judges are appointed by the government, not elected.

  • Provincial court judges are appointed and paid by provincial governments.

  • All other judges, from the Supreme Court of Canada down, are appointed by the federal government, but paid by provincial governments.

  • No judges are elected.

4. Lawsuits

  • In most cases, a lawsuit is assigned to the courthouse where it was filed, not to a single judge.

  • Any judge may be assigned to handle any step in the lawsuit.

5. Death Penalty

  • There isn’t one in Canada.

6. Costs

  • Loser pays, i.e. the losing side in a case or a motion normally pays most of the other side’s costs, i.e. legal fees.

  • There are some, not many, exceptions to this rule..

7. Discovery

  • Discovery in Canada is akin to production of documents and depositions or interrogatories in the U.S., but different.

  • The terms deposition and depose have no in meaning in the Canadian system.

  • The right to examine the other party for discovery is automatic, but limited.

  • Each side must produce all relevant documents (paper and electronic) to the the other, subject to lawyer-client confidentiality (or privilege), and a proportionality principle (e.g., you don’t have to produce a zillion documents in a 475,000 case.). This is a more limited process than in the U.S.

8. International Outlook

  • Canadian courts are more open to examining the law and decisions of other Common Law countries to help formulate answers to legal questions here.

 

9. Juries

  • They are much less frequently used here.

  • Few civil trials have juries. In some cases litigants may not even be allowed to ask for a jury.

  • Some criminal trials have juries. Many don’t.

10. Damage Awards

  • Civil damage awards tend to be much lower here.

  • Most importantly, damages for “pain and suffering” (called general damages) cannot be higher than about $350,000. Even then, that amount is reserved for the most severe cases.

11. Bilingual Courts

  • Courts in Canada are officially bilingual.

  • You are entitled to a trial in either English or French.

12. Media

  • Cameras are generally not allowed in Canadian courtrooms.

  • After a jury trial, it is illegal for jurors to talk to the press (or anyone) about the case.

13. Terminology

  • There are some terms the American system uses that the Canadian one does not. In court, Canadian lawyers call the opposing counsel “My friend”. More terms:

 

14. And...

  • Other differences between the two systems include:

 

  • Most judges, lawyers and some court personnel all wear formal black robes and white collars (but no wigs).

  • It is common practice to bow to the court when entering and leaving the courtroom while the judge is sitting.

  • There is no gavel in the courtroom.

  • There are no “sidebars”.

  • In Canadian trials, you cannot strike something from the record.

  • When addressing the court or examining, lawyers are expected to remain at the counsel table.


 

/rd

Toronto 2014