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The Same, but Different: Ten Tips for Litigating Fraud Cases North of the Border

David Bishop Debenham

The Same, but Different: Ten Tips for Litigating Fraud Cases North of the Border
SimplyCreativePhotography via Getty Images

Canadians are able to impersonate Americans at will, or so we believe. The recent movie Barbie starred at least eight Canadian actors in addition to Ryan Gosling. When Americans find out we are not fellow citizens, they describe us as “the same, but different.” So why is our “accent” so American? Because of a difference of views over King George III, a number of our ancestors called “United Empire Loyalists” were banished to the northern tundra to play hockey. If you watched TURN: Washington's Spies, a history of the Culper Spy Ring, you will note Lt. Col. John Simcoe is portrayed as a villain for fighting on behalf of His Majesty’s forces against the American Revolutionaries. Canadians remember this “villain” as the first lieutenant governor of the province of Ontario, the founder of Toronto, the founder of institutions such as courts of law, trial by jury, English common law, freehold land tenure, and especially for the abolition of slavery in Ontario, where the Act Against Slavery (1793) became the first legislation to abolish slavery in the British Empire. He is seen by many Canadians as a founding figure in Canadian history. He is commemorated in Toronto with Simcoe Day. There you have it, Canadians—similar, but oh so different.

When considering whether to litigate in Canada, it is important our U.S. clients understand the differences between litigating in the two countries. Here are 10 important differences:

  1. Our pretrial discovery involves one examination of an opposing party and no examinations of expert witnesses. A party has only seven hours of discovery to spread over as many opposing parties as they choose.
  2. Documentary productions are required to be based on a cost-benefit analysis.
  3. Loser pays 65 percent of the legal costs of the winner in ordinary cases. Where fraud is alleged, the loser pays 90 percent of the legal costs of the winner. This is true of motions as well as trials.
  4. The civil jury trial is virtually non-existent.
  5. Security for costs: Foreign plaintiffs can expect to post a bond as security for costs should they lose, unless they have assets in Canada sufficient to pay legal costs in the event of a loss.
  6. Your case will likely be tried in the superior court of the province. Our federal court is reserved for very specialized matters such as intellectual property disputes.
  7. Canadians have access to pretrial remedies second to none: (1) a “Mareva” injunction to freeze all of a fraudster’s assets (whether connected to the fraud or not) to ensure an eventual judgment will be paid; (2) a “Norwich Pharmacal” order to require non-parties like banks to disclose records that may assist in tracing funds and identify parties to the fraud; (3) an “Anton Piller” order that serves as a civil “search warrant” to seize and preserve evidence pending trial; and (4) a court-ordered receivership to take control over any corporate vehicle for fraud.
  8. We have garnishment as a post-judgment remedy so that all monies owing to a judgment debtor flow automatically to the judgment creditor without the need for further litigation.
  9. Our courtroom decorum is completely different. It is common practice to bow to the judge 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, and there is no constitutional right to remain silent in a civil case. Awesome!
  10. And finally, we dress better in court. Men and women “barristers” are not “attorneys.” We wear gowns, tabbed collars (called bibs and bands), striped barrister’s pants, and a collarless white court tunic with French cuffs and cuff link. Think of how John Wesley looked in an eighteenth-century pulpit. We’re radically retro!

 So now ask yourself, should you be litigating your fraud case in Canada?