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4 Differences Between Personal Injury Cases in Ontario and the United States


Given our proximity to the United States, the prevalence of American media in popular culture, and the relative infrequency with which most people interact with the courts, it comes as no surprise that some Ontarians are more familiar with American legal concepts than local ones.

But personal injury cases in the United States differ significantly in several respects. These include:

1. The Role of Federal Courts

Both Canada and the United States divide political power between multiple provincial or state governments and a single, nationwide federal government. The two levels of government in each nation have their own distinct courts, but the role of federal courts in personal injury cases couldn’t be more different.

Canada’s federal courts exercise jurisdiction in limited circumstances, such as in admiralty cases, federal tax disputes, and lawsuits against the federal government. The one exception to this rule is the Supreme Court of Canada, which is supreme over all Canadian courts in all areas of law.

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Federal courts in the United States generally exercise two different types of jurisdiction: federal question jurisdiction, which applies when a lawsuit raises an issue of federal law; and diversity jurisdiction, which applies in a lawsuit when:

  • None of the plaintiffs are from the same state as any of the defendants; and
  • The amount in controversy is greater than $75,000.

Federal courts in diversity cases apply the law of the state where they are located. In other words, in many cases a plaintiff can choose to file a personal injury lawsuit either in state court or in federal court, and that decision will not affect the applicable law.

However, if a plaintiff chooses to file a lawsuit in state court, the defendant may be able to move the case to federal court if the federal court’s jurisdictional requirements are met. Defendants often want to move a case to federal court, because those courts are considered friendlier to defendants than their state-court counterparts.

This creates an opportunity for gamesmanship in personal injury cases that doesn’t exist in Canadian courts, as plaintiffs attempt to gerrymander an action that avoids federal jurisdiction, and defendants attempt to defeat those efforts and move the case to a more favorable forum.

2. Contributory Negligence

Ontario and most states in the U.S. also differ in how they deal with a plaintiff whose negligence contributed to his or her own injury.

In lawsuits in Ontario, based on the defendant’s negligence, the court must determine the extent to which the plaintiff’s own negligence contributed to his or her injury, if at all. This is referred to as “contributory negligence.” The plaintiff’s recovery is reduced in proportion to his or her contributory negligence.

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In the U.S., the phrase “contributory negligence” refers to an older rule, under which a plaintiff was completely barred from recovering if he or she was even slightly at fault. Today, only a handful of states still follow this rule.

What we in Ontario refer to as “contributory negligence,” the U.S. refers to as “comparative fault.” Most states use a system of comparative fault, but there are different variations:

  • Ontario’s contributory negligence rule is most like the “pure comparative fault” rule used in about a dozen states. Under this rule, the plaintiff’s recovery is simply reduced to the extent of his or her own fault.
  • A majority of states use what’s called “modified comparative fault,” in which the plaintiff’s recovery is reduced to the extent of his or her own fault, but barred entirely if the plaintiff’s percentage fault exceeds a certain threshold. The threshold may be 49% or 50%, depending on state law.

3. Damages for Pain and Suffering

Both U.S. and Ontario law provide for recovery of damages for pain and suffering. However, to what extent such damages can be recovered varies wildly not only between Ontario and the U.S., but also between different jurisdictions in the United States.

In the late 1970s, the Supreme Court of Canada imposed a limit on the amount of damages that could be awarded for pain and suffering. These sorts of damages are referred to as “non-pecuniary,” because it’s impossible to put a precise price tag on them. At the time, the limit on pain-and-suffering damages was $100,000. Because of inflation, that limit is approaching $400,000 today.

The United States is infamous for its massive damage awards.

A substantial portion of such large recoveries is attributable to damages for pain and suffering, which remain unlimited in much of the country.

To be sure, there have been efforts in some states to rein in extravagant damage awards. About a dozen states limit damages in personal injury cases, and still more in medical malpractice cases.

4. Costs

Filing a lawsuit always involves costs. At a minimum, virtually every case will have filing fees and lawyers’ fees. But the United States and Ontario have developed different rules for who ultimately pays those costs.

Canada generally follows what is known as the “English Rule,” in which the costs of an action are paid by the losing party. In Ontario, awards of costs are within a court’s discretion, but generally the losing party will have to pay at least some of the prevailing party’s costs.

The United States differs from other common-law nations in how it treats the costs of litigation. The U.S. generally follows what is called the “American Rule,” under which each party to a lawsuit bears its own costs, regardless of who prevails. However, some states have introduced limited versions of the “English Rule” for specific circumstances.

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The differences between personal injury cases in the United States and Ontario may seem like minutia, and for most people in either place, that’s all it is. But for litigants who may be involved in lawsuits in both jurisdictions, or who face a choice of where to pursue their claims, these differences can have a dramatic impact on their legal rights and recovery.

Since Canadians are exposed to numerous American television shows and films about the law, it can be difficult to fully understand the nuanced differences between the ways our jurisdictions treat personal injury claims. If you have been injured and have questions about options for legal action that might be available to you, call our Ontario personal injury lawyers at 1-800-JUSTICE and receive your free initial consultation.

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