Courting America's Litigious Legacy
Canadian justice system in jeopardy of following U.S. pattern of decline
Contact:
Owen Lippert, Director, Law & Markets
The Fraser Institute, (613) 565-0468, Email owenl@fraserinstitute.caRelease Date: 26 August 1997
VANCOUVER, BC>>> Is Canada immune to the "legal lottery" operating south of the border? That is the question the Fraser Institute asks in its latest book, Law and Markets: Is Canada Inheriting America's Litigious Legacy?, edited by John Robson, Deputy Editorial Page Editor, Ottawa Citizen, and Owen Lippert, Director of the Institute's Law and Markets project.
"Countless class action suits, preposterously large damage awards, and hordes of fast-buck lawyers -- that is how most Canadians picture the American legal system, but not our own," said Lippert. "We take for granted that our courts and lawyers are saner, less costly and less disruptive."
But is it true? Canada now graduates lawyers faster than the United States. From 1985 to 1995, the number of members of the Canadian Bar Association increased by 37 percent. During this same period the population of Canada grew only 13 percent. The per capita number of lawyers in the US has actually declined slightly, while the number in Canada continues to increase.
And over the last 20 years, what individuals pay for legal services has grown three times faster than the economy as a whole.
So are we inheriting America's litigious legacy? The jury is still out, but the distinguished group of legal professionals and economists contributing to the book suggest that the "inheritance" -- a number of unwise legal rules and habits -- may be spreading and settling in Canada.
Class action suits, a favorite pastime in the U.S., are now legal in Ontario, Quebec and British Columbia. The class action suit being launched against the Toronto Transit Commission for a recent fire in the subway is just one of hundreds of such suits in the system.
In Ontario alone in the past decade, more than two million civil cases were filed in Ontario courts, where parties can wait up to five years before their case is heard. On average, a typical plaintiff in a civil action that goes to trial spends nearly $38,000 to recover $55,000.
Legal settlements are growing in number and size. Between 1985 and 1995 more than 150 punitive damage awards were reported, at least 16 of which were in excess of $50,000. Punitive damage suits have become one of the fastest growing areas of liability in the country.
Bruce Feldthusen, professor of Law at the University of Western Ontario, writes in his contribution, "Increasingly, and soon, tort law in Canada will come to resemble more closely tort law in the United States .... We have seen it in all our corporate and commercial legislation. We have borrowed heavily from American experience in drafting and interpreting our Charter of Rights and Freedoms. U.S. tort precedents now appear frequently and prominently in Canadian appellate court opinions."
Chief Justice of the Ontario Supreme Court, The Honourable Roy McMurtry, warns, "The distressing reality is that the civil justice system in Ontario has increasingly failed to provide a dispute resolution system that operates in a timely and affordable way for the majority of our fellow citizens. The malaise is deep, and so it is immensely important that we take a hard collective look at its problems and potential solutions."
Law and Markets also addresses:
- how Canada's legal system has changed over the last 20 years;
- whether Canada already has adopted American approaches to liability and negligence;
- what legal innovations are being proposed today;
- what U.S. legal innovations we should avoid; and
- how we should reform our courts and legal institutions.
The overall message of the book is clear. It took only a few short decades for the American civil justice system to deteriorate, and it may never recover. Given Canada's smaller size, and the at-hand American example, decline could potentially be even swifter in Canada.
Established in 1974, The Fraser Institute is an independent public policy organization based in Vancouver.
For further information contact:
Suzanne Walters, Director of Communications,
The Fraser Institute, (604) 714-4582,
Email suzannew@fraserinstitute.ca
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