The market, or potential market, for Canadian business -- present and future -- is all of North America, and, indeed, the entire world. Improved communications, including the Internet, and ease of travel have made distant markets more accessible and serviceable. Barriers to market entry continue to fall, albeit slowly and inconsistently. For a variety of reasons, including geographic proximity, the U.S. is often the first market outside Canada sought to be serviced by Canadian business.

“Cross-border litigation” – that is, litigation involving or affecting persons, commerce, and/or courts in both Canada and the U.S. – has grown as commerce between Canada and the U.S. has expanded. The former is a direct and inevitable result of the latter. The more frequently and longer Canadian businesses sell into the U.S. market, the greater the probability of litigation in the U.S. or litigation involving U.S. entities. The U.S. is a notoriously litigious society, and commerce fuels the litigation fire. As stated by the United States Court of Appeals for the Eighth Circuit, “In this age of NAFTA and GATT, one can expect further globalization of commerce, and it is only reasonable for companies that distribute . . . products . . . in this country to anticipate being haled into court by plaintiffs in their home states.” Indeed, in many cases, Canadian plaintiffs will want to proceed in the United States, due to the greater availability of punitive damages, generally higher jury awards, broader discovery, and other factors such as pending multi-district litigation or class actions.