Legal Systems
Both Canada and the U.S. have a Common Law system of law, with the exception of Quebec which has a Civil Law system of law. The legislature in the United States and Canada are each divided into three portions: the executive, the legislative and the judiciary. Canada and the U.S. are also similar in that both have two principal legal jurisdictions, namely the federal government (Dominion/Union) and the respective provinces and states of those two countries (Provincial/State). To elaborate further, the executive of the federal government is headed by the U.S. President, the executive of the Canadian federal government is headed by the Governor-General; the legislative branch of both governments (U . S. Congress and Canadian Parliament) is made up of two houses of elected representative, the Senate and the House of Representatives in the U.S. and the Senate and the House of Commons in Canada. The judiciary also has two courts of last resort: the Supreme Court of the U.S. and the Supreme Court of Canada. The Court of Appeal for each state and province (Maryland and Nova Scotia) act as court of last resort for their respective states and provinces except in the event of an appeal to the Supreme Court of the U.S. or the Supreme Court of Canada. The court system in both the U.S. and Canada is, to a large extent, governed by common law rather than by legislation.
Criminal Law
Criminal law is another significant area where the nuances between Canadian and U.S. laws can be significant. In Canada, the criminal justice system is meant to protect the public from individuals who cause harm. The criminal code defines those offenses that pose a threat to the safety and security of the Canadian community.
The U.S. approach to criminal law varies slightly. The Federal Bureau of Investigation oversees and maintains a national database of criminal records, which employers and other agencies can use to screen applicants. Most states have their own databases of criminal offenses as well. A state’s laws govern what actions are deemed crimes and how offenders are punished. The punishment or penalties for a crime committed in the U.S. are typically more severe than in Canada due to minimum sentencing guidelines.
In both Canada and the U.S., offenses are classified as felonies or misdemeanors. A felony is a more serious crime. Examples include murder and assault. Punishments may include imprisonment, parole and probation. A misdemeanor offense may carry less severe penalties, such as fines and/or imprisonment for no longer than one year.
Another key difference is that Canadian criminal procedure law does not allow a defendant the right to sue the government. In the U.S., the defendant can sue the government if they are the victim of a malicious prosecution. The purpose of such lawsuits is to establish a means to sue for damages from wrongful prosecutions to hold prosecutors accountable.
Civil Law v Court Procedures
Canadian and U.S. Laws: A Comparative Guide
Civil law differs considerably between Canada and the United States, as does the process of seeking resolution in a court system. Certain civil cases are intended to be settled between the parties who directly participate in the events giving rise to the dispute. The seeking of remedies through the courts is seen as a last resort.
The general framework for civil law in Canada is that an individual must demonstrate that they have suffered some kind of injury, the cause of the injury was the responsibility of another party, and there were no other causes contributing to the injury. It is not enough to show that another party was negligent; it is necessary to determine the degree of fault of each party and that the fault was causally connected to the loss.
Most claims are for "general damages" that provide compensation for pain and suffering or mental anguish. There is no cap for general damages in Canada, but there are no awards for punitive damages. However, damages for lost income or future income are capped at $350,000, while punitive damages can be awarded in cases of fraud or injury to life.
There are three classes of tort liability in Canada:
Claimants will often pursue settlement rather than a court action through the mediation process. Mediation is a type of alternative dispute resolution that can be binding or nonbinding, and involves both parties meeting with a third-party mediator who facilitates discussions about what the issues are and how the parties can work toward resolving them.
In family law, the process starts with a formal application to the court to request or ask it to make a certain order. Applications can be made with or without notice to the other spouse. An application for divorce must be made one year after a couple has separated and requires the one spouse to claim a specific reason for the breakdown of the marriage – including adultery or abuse – but does not require evidence of the relationship’s end being caused by the other spouse.
In the United States, the process begins with the filing of a complaint with the local federal or state court, depending on the federal jurisdiction involved. In a family law situation, this starts with a petition for divorce. The responding party is served the complaint and then given a certain number of days to file a response.
In general, the statute of limitations for certain matters in the United States is two years. This means a plaintiff has two years from the time an injury occurred or was discovered to bring a lawsuit, if the defendant is a private citizen. Claims against the federal government must be filed within six months.
In Canada, the limit to file a lawsuit is two years from the date the injury occurred and varies by province. In addition, many lawsuits that can be brought in the United States can’t be filed in Canada. This is why it’s important to seek assistance from law firms with an understanding of both legal systems.
The judge will hear the evidence and present a judgment to the plaintiff and potentially award substantial damages for items such as damages to property that occurred during an altercation. Defendants may request a jury trial, and appellate review is available.
In the United States, certain small claims actions are heard in specialized courts that are separate from the regular district courts. These are often called magistrate’s courts or municipal courts. A damage award is limited to 10 times the monthly rent of the property or $5,000, whichever is greater.
Because claims such as property damage or contract disputes are comparatively less complicated than family law cases, the procedures used by small claims courts are both simpler and less formal than those used in standard district courts. Unfortunately, this just means that claimants often don’t receive the compensation to which they’re entitled.
There are many differences in civil law in Canada and the United States. Individuals involved in torts, family law matters, or small claims should consider the assistance of a lawyer with experience in both Canadian and United States law.
Labor Law
Employers operating in the United States ought to be aware that there are many differences between the employment laws of the two countries. For instance, minimum wages range from $7.25 to $15.00 per hour, depending on the state or municipality across the U.S. The Fair Labor Standards Act (FLSA) protects workers by establishing minimum wage and overtime payment requirements. States and localities may impose additional minimum wage standards as well, so it is important for employers to consult local and state law. Canada on the other hand has a federal minimum wage of $11.06.
The FLSA does not require that employees be paid overtime if they work over 40 hours in a week. Rather, the FLSA requires that employees be paid for all time worked. Regardless of the overall hours worked, a worker is entitled to overtime pay if he or she works more than 40 hours in a single week. This means that employees who work more than 40 hours in a week, but less than eight hours in a day should receive overtime pay for hours worked over 40 in a week. If an employee works more than eight hours in a day, but less than 40 hours in a week, he or she is not entitled to overtime pay. Frequently, employers will agree to allow an employee to take some time off in order to mitigate the effects of working more than 40 hours in a week. For example, if a worker is scheduled to work 10 hour days, seven days in a row, the worker may be allowed to take as much time off after the seventh day as is required to return to the employee’s regular weekly work schedule. However, this kind of arrangement must be consensual and it is highly advisable to have this arrangement in writing.
Although employment at-will is typically the default rule in the United States, Canada differs significantly in this respect. An employer that is displeased with an employee’s performance cannot terminate that employee without statutory cause absent an employment contract that allows for termination at-will. While Canada does not require an employer to have "just cause" to terminate an employee, in most cases, non-unionized employees are entitled to notice of termination or pay in lieu of notice. Even in unionized workplaces, jobs are not protected from termination. A principal difference between Canada and the United States is that employees in Canada have the right to sue their employer for damages rather than filing a grievance. In the United States, arbitration is the preferable method for resolving workplace disputes. Arbitration allows the employer to maintain greater control over the resolution of the workplace dispute.
In general, there is no law in the United States requiring employers to provide vacation time to employees. There are a few states, including California, which mandate varying amounts of vacation time for employees. While vacation time in Canada is not mandatory, the first two weeks of annual vacation are mandatory. Vacation may not be waived even if the employee consents. In the United States, an employee may waive the right to take vacation time as long as the waiver is in writing. In general, vacations cannot be revoked under union contracts unless the employer has the state’s permission and warnings have been given to employees. In Canada, vacation cannot be waived or "bought out".
Workers in Canada are entitled to a multitude of benefits including unemployment insurance, maternity and parental leave, and paid sick days. While equivalent benefits exist in the United States, the federal benefits are far more generous. In the private sector, the employer is responsible for paying for short-term disability.
Immigration Law
Given the somewhat unprecedented political climate of the past two years it can be easy to overlook the drumbeat of change in the U.S. immigration law world. For Canadians (and others!) contemplating moving south, or just hiring immigrants, it is a minefield. In fact, if you are contemplating cross-border employment, addressing immigration law at the same time can yield some cost savings for you and your employees. That is because an application for work eligibility (in the U.S.) very often requires an application for a visa or other immigration benefit. Generally, we U.S. immigration lawyers like reviewing the immigration law issues with counsel in the companies that are going to be following our lead with the various filings. Particularly where the U.S. application can be expensive, it may prove more efficient to join efforts earlier in the process – and save headaches in the application stage.
The immigration law landscape is not, as we have seen this last 2 years, a stable thing for Canada or the United States. In the U.S., immigration law changes that are moving forward now include a unilateral decision by the U.S. President to terminate NAFTA. Congress is trying to head this off, and so are individuals and companies both in the U.S. and Canada, but our view is this NAFTA Chapter 14 issue has a very good chance of resolving relatively quickly one way or the other. If Canada can win even a short extension of the 6 month notice period to withdraw, that may accomplish a great deal, if not all, of what is needed in order to avoid immediate punishment to U.S. and Canadian companies with operations or employees living across the border.
The thing to remember is that while the President has the power to terminate treaties, the U.S. Congress will have to act to pass any new immigration legislation. So long as the U.S. Legislature is in gridlock, we will likely see a continuation of the current administration’s practice of unilateral presidential proclamations that restrict movement into the U.S. without going through the mechanics of passing a law. The other thing we will see in the U.S. is the Reinvention of the Wall as a means of controlling who is allowed to enter the country and also when the country is open. Much like the hole in the wall of the Berlin Wall, the right place to dig our way out of this is through Congress.
One area, a bright spot for Canada, is its immigration policy. Canada presently allows foreign workers to apply for permanent residence and citizenship directly after working in Canada under a temporary status program. While in the U.S., an H-1B employer is required to file an application for permanent residence (green card) on behalf of a foreign employee, there is no way to get a green card until the employer has already offered the foreign national permanent employment. Canada, however, allows the foreign worker to jump ahead of that step, with a few limitations, at the end of a year of being employed in an authorized status and working at the level the foreign employee was offered by the permanent residence offering employer.
It is this "in" of having been a temporary foreign worker for a year that puts the foreign employee into the fast track for permanent residence. And this benefit does not end with the foreign employee. Employers and the rest of Canada benefit, too, by having the opportunity to win over the temporary foreign employee by offering the employee that much coveted permanent position.
Canada and the U.S. have always operated on different sides of the guardrails of immigration law – Canada wanting to attract foreign immigrants as workers, the U.S. generally seeking to limit immigration work coming in and preventing Americans from being replaced in their work. The U.S. has never been one to count on immigrants for economic growth, while Canada has seemingly jumped into the future with its policies regarding benefits to immigrants. It will be interesting to see how this plays out when economic times get tight.
Intellectual Property Laws
Canada and the U.S. have similar, but not identical laws. This is the fourth in a series of posts comparing Canadian and American law. Information here is always simplified.
Canadian and US laws protecting intellectual property – patents, trademarks, and copyright – share many features. The differences can be significant, particularly for businesses.
Patents
Canada and the U.S. both provide patents protecting technical subject matter from being made, used, or sold anywhere in the respective country. A US patent is generally effective protection in Canada as well when seeking to enforce the patent against a competitor’s activities in Canada. Likewise, a Canadian patent is generally effective protection in the US. However, the US has a system to protect the appearance of certain designs which is different from the protection available in Canada. There are other differences with respect to what acts are prohibited by the patent owner and the scope of damages in some cases.
Trademarks
Laws regarding the registration of trademarks are very similar between Canada and the United States. Protecting and enforcing a trademark registration in the US does not necessarily provide similar protection in Canada, although in many cases there are similarities. For instance, the test for confusing trademarks is not identical. Where registrations are used as a basis for infringing allegations, in the US , alleging infringement under a trademark registration requires the US federal registration to be on-file in the US (and not merely the Canadian registration). In Canada, this is not a requirement. Another major difference between US and Canadian trademark law is that the US no longer allows registration for marks which merely describe a product. This is contrary to Canadian law where registrations are made on mere descriptiveness. All rights under a trademark registration eventually expire if not renewed. In the US, registrations are renewable indefinitely. In Canada, after 15 years, the trademark owner will be required to prove use of the trademark in the first 5 years of its registration before the renewal is granted for another term.
Copyright
Under US law, copyright protects any work of authorship that is fixed in a tangible medium of expression from unauthorized copying, public performance, public display, or distribution. In Canada, copyright protects "literary, dramatic, musical and artistic works", against unauthorized copying, rental or lending, public performance, public display, or communication to the public by telecommunication. Broadcast is included in US and Canadian law. Works not in a certain fixed form, such as an idea or mark, are not covered. Hollywood movies are created under Canadian law unless the film’s owner elects for US law to apply. If a Canadian filmmaker elects for US law to apply, then it is as if US law was always the default law for the Hollywood movie.
Health Care Law
In the context of the Canadian and U.S. health care systems, comparable law includes patient rights to privacy and confidentiality (e.g., Personal Health Information Protection Act, Freedom of Information and Protection of Privacy Act, etc.), medical malpractice, consent and information, mental health, guardianship, substitute consent and privacy issues, among others.
Similarities between Canadian and U.S. law include (a) applications to the court or tribunal; (b) provincial or fed/state legislation; (c) common law rules; (d) agency discretion (e.g., hospitals, governments); (e) grievances and adjudicative review; (f) professional conduct; (g) hard law, regulation, registration, certification, reporting standards; (h) malpractice and negligence suits; (i) contractual and statutory rights (e.g., accountable care organizations and readmissions); (j) constitutional law rights (e.g., due process, unreasonable search and seizure); (k) rights to appeal administrative tribunal decisions to the courts; and, (l) statutes and regulations. (E.g., rights granted under Mental Health Act, Personal Health Information Protection Act, Standardized Board Governance in Accordance with Quality of Care Information Protection Act (QIIPA)). Although QIIPA is generally comparable to the Health Insurance Portability and Accountability Act (HIPAA), the protected health information (PHI) category differs. PHI does not protect information of status Indians in the U.S. while PHI does cover First Nations, Métis and Inuit in Canada.
Environmental Law
The comparison of Canadian and U.S. laws continues in the field of environmental law. In Canada, environmental laws that control pollution are based on the Canadian Parliament’s "Peace, Order and Good Government" mandate. The Constitution Act provides that Parliament retains "exclusive legislative authority" to make laws for Canada, unlike the 10th Amendment to the Constitution which reserves to the US States, respectively, "police powers" which give the States the right to regulate issues such as pollution control. The federal government controls environmental law in Canada. Regulatory and enforcement laws regarding pollution control and penalties for non-compliance vary between Canada and the U.S. These differences have been taken into consideration by Alberta Environment when it entered into a Memorandum of Understanding with the State of Montana. The MOU relates to the trans-boundary release of fullerenes. In fact, Alberta Environment and Public Safety corresponded with their counterparts in the State of Montana in December 2008 and February 5, 2009 regarding the agreement and subsequent interim agreement regarding monitoring, education and future follow-up. Much work by all parties remains to be done; however, the matter is indicative of how Alberta Environment is trying to educate and engage U.S. regulatory bodies with respect to trans-boundary issues. A lead role may also be assumed by Alberta in this area. International treaties have not yet addressed international environmental law and the environment in Canada and the U.S. has not suffered much from the thorny issue of water across our very long border. Climate change is arguably the most important environmental issue facing Canada and the U.S. today. The topic of climate change was recently on the agenda of the Calgary Chamber of Commerce and will continue to be. It is of great concern in Alberta since both the Alberta and federal governments’ climate change strategies and policies should be able to pass constitutional muster. There are potentially compelling arguments in favour of policies directed at reducing emissions on the U.S. side and the Canadian and U.S. governments may find some common ground in an effort to combat climate change. For example, the price of certain carbon emissions will be combined and create a single price for carbon emissions in parts of Canada and the U.S. Some jurisdictions have already joined with other jurisdictions to price carbon emissions. In light of the upcoming provincial election, I wonder how important climate change initiatives and what type of initiatives will be on the agenda of the provincial or federal governments? Will there be a carbon tax – is there an appetite for one in our current economic environment? If such a tax were levied, it seems that Alberta would be well-positioned with our expertise and experience in carbon capture and storage. The oil sands industry, Mimico said "is on the cusp of a renaissance," that will launch Alberta’s growth into the next decade and beyond.
Conclusion: Legal Culture
This article has explored a number of ways in which the laws of Canada and the United States differ, paying particular attention to the potential economic impacts of those variations. Particularly noticeable differences in this comparison include:
The legal cultures of each country are defined by the laws that govern them, and how those laws are interpreted and enforced. As a result, the legal systems in Canada and the U.S. are distinctively different, with both similarity and dissimilarity in certain areas of the law. Cultural factors also shape these differences, due to the influences imposed on legal systems by the governments and citizens of each nation.
While similar at first glance, the U.S. and Canadian constitutions are actually quite different in many of their specificities, varying in the way they are enforced and interpreted. Understanding these differences can help shed light on why the laws of each country are structured in such a way, pointing us toward the potential future adaptations and interpretations of existing regulations.
In the years ahead , some may see calls for Canada and the U.S. to legalize drugs, while others may see the two countries taking extra steps to reserve further control over their respective sovereignty. As such changes take place, it will be of the utmost importance that citizens and lower courts be cognizant of legal framework and precedent in each country. In addition to helping to standardize interpretation of the law in both nations, knowledge of the unique qualities of each country can help increase mutual understanding of other social mores of the two.
The greatest takeaway from this article is that the laws of the U.S. and Canada differ in their specifics, resulting in a number of differences in how legal matters are handled. The factors behind the development of these variations offer insight into the cultural motivations behind them. Understanding these differences and the cultural factors behind them can help us appreciate the potential ramifications of future legal changes in both Canada and the U.S.