Legal Myths Personal Injury Law in BC
Culture of ‘frivolous lawsuits’ a product of outdated, Bush era propaganda, says Canadian Medical Association publication.

Urban legends are a form of modern folklore presumed to be factual. The original details of the stories, like fairy tales, are susceptible to the poor memories of storytellers or their desire to improvise and exaggerate.

Enter the numerous stories of outlandish lawsuits— bizarre but plausible stories that play on the anxieties of our modern time. Rumours interact with these stories to become myths, which then sink into the psyche of our culture.

Canadians have been known to swallow these myths whole, especially as they relate to common beliefs about the United States. The vast majority of us prefer to believe we live in a more stable country, where major events affecting our lives and our minds have understandable causes. We are not like those ‘crazy Americans’, many figure.

This is not to disparage Canadians in general. It’s human nature. The human brain has evolved to find patterns, and thus evolved a useful coping mechanism whenever the need arose to avoid threats, saber-toothed tigers and the like. It’s not so useful when confronted with opaque and complex events.

Here is one pervasive, deeply rooted myth that has been gobbled up by even the upper echelons of Canadian society: Americans are more litigious. They are lawsuit-happy and ready to charge off to court for the slightest of causes where they are rewarded with massive sums of damages verdicts.

The upshot of this myth is that whenever we want to move the law forward, to make the courts more accessible or the law fair for the innocent, we run up against this wall.

When we advance evidence that contradicts this closely held belief, Canadians cling even more tightly to their convictions. The more these convictions are challenged with evidence, the more lawyers are distrusted. Remember that F. Lee Bailey said, “The public regards lawyers with great distrust. They think lawyers are smarter than the average guy but use their intelligence deviously. Well, they’re wrong; usually, they are not smarter.”

Then, the ground shifted about six years ago—or so we thought.

On March 31, 2009, the Canadian Medical Association published an article that blew the top off the myth. It set out what we personal injury lawyers have been saying all along, right down to point out George W. Bush’s role in propagating the myth in his own country. The former U.S. President misled his own people to believe there was a so-called epidemic of frivolous lawsuits.

The Canadian Medical Association article conceded to all of these points: Volatile insurance premiums are due to insurance cycles, not litigation. Americans are not litigation crazy. Jury awards are not out of control. Weak claims are weeded out by the courts. Caps and limits do not decrease insurance premiums, but better safety practices to prevent harm would have that effect.

What is crazy is that sophisticated Canadian institutions, like the Supreme Court of Canada, were so moved by the myth that for decades there has been a cap on non-pecuniary damages, with no indication that it will ever be lifted. No Ministry of Justice or Attorney General, with all of their tax-funded legal genius, has tackled the myth in Canada. Let’s not even get going on issues like our century-old need for wrongful death law reform in B.C.

The Canadian Medical Association published its article at the beginning of Barack Obama’s first term in office. The clock is ticking for Canadian lawmakers, politicians and journalists to follow suit.

Modified from article originally published in Issue 121 (June 2009) of The Verdict, publication of the Trial Lawyers Association of British Columbia.

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