Canada: Exactly The Same, But Totally Different: A Few Small But Notable Differences Between Canada And U.S. Legal Systems

Legal institutions in Canada¹ and the United States share a common ancestor: British common law. As the neighbours' systems have evolved over time, they have each developed their own distinct personalities, practices, and vocabularies. And yet, they retain strong family resemblances. Or as we like to put it, the Canadian system is just like the U.S. one – except it's totally different.

We thought it might be useful for our American friends – and some Canadians – to have a brief guide to a few notable differences in the legal system here, north of the 49^th parallel. It's highly simplified and plainly non-exhaustive. We've omitted many (many) details. We 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 that 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 some tension between provincial and federal jurisdictions, but overall, they function together effectively.

2. Structure of the Court System

• Provincial courts (in Ontario, the Ontario Court of Justice) deal with less serious criminal and civil matters. Judges are appointed by the province.
• Superior courts (in Ontario, the Ontario Superior Court of Justice) deal with most remaining matters. Judges are appointed by the federal government, but the courts themselves are governed by provincial laws.
• Each province has a Court of Appeal (not Appeals) whose decisions are binding on the provincial and superior courts. Judges are appointed by the federal government.
• There is a Canadian Federal Court and Federal Court of Appeal. Their jurisdiction of 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, all 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. Legal Costs

• The losing side in a case or a motion normally pays part – a third to two thirds, usually – of the successful side's costs, i.e. legal fees. In almost all cases, if you lose in Canada, you pay the other side's lawyers.

7. Discovery

• The right to examine the other party for discovery is limited. Each side must produce all relevant documents (paper and electronic) to the other, subject only to lawyer-client privilege (which we call solicitor-client privilege). This is a more limited process than in the U.S. Also, deposition and depose have a somewhat different meaning in the Canadian system.

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, especially in human rights cases.

9. Juries

• They are much less frequently used here. Few civil trials have juries. In some cases, litigants may not even ask for a jury. Some criminal trials have juries. Many don't.

10. Damage Awards

• Civil damage awards tend to be much lower here. Damages for “pain and suffering”, i.e. 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 English or French.

12. Media

• Cameras are generally not allowed in Canadian courtrooms. After a jury trial, jurors are forbidden 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 Canada-specific differences include:

• Most judges, lawyers and some court personnel all wear formal black robes (judges may have a red sash) 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 the courtroom.
• You cannot strike something from the record at a trial.
• When examining a witness, lawyers are expected to remain at the lectern or counsel table. They cannot approach the witness in the stand.

Footnotes

1 Outside Québec. This article focusses exclusively on Canada's common law jurisdictions.

2 Amicus curiae means something different in Canada.

3 There is a Canadian Bill of Rights –but it's not constitutional, and is of lesser legal relevance.

Originally Published by Fogler, Rubinoff LLP, March 2021

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.