October 29, 2020 Practice Points

Letters Rogatory for Discovery in Canada: What U.S. Attorneys and Clients Need to Know

Practice tips and considerations for seeking discovery in Canada

By Byron Shaw

Foreign subpoenas or orders for depositions are not automatically enforceable in Canada. Evidence for use in foreign proceedings can only be compelled from a witness located in Canada with the assistance of a Canadian court. Letters rogatory (known as “letters of request” in Ontario) are an effective avenue for seeking documents and testimony in Canada.

Enforcement of Letters Rogatory in Canada

The enforcement of letters rogatory is governed by both provincial and federal legislation. The Canada Evidence Act, RSC, 1985, c C-5, s 46, and Ontario Evidence Act, RSO 1990, c E23, s 60 are two such examples. Each province has similar legislation. These statutes set preconditions that must be satisfied before letters rogatory will be considered. In Ontario, for example, the statutory preconditions for enforcing letters rogatory are outlined in s. 60 of the Ontario Evidence Act, and summarized in Riverview-Trenton Railroad Co. v. Michigan Dept. of Transportation, 2018 ONSC 2124 at ¶ 33 as follows:

  1. The foreign court is desirous of obtaining the evidence;
  2. The witness whose evidence is sought is within the jurisdiction of the court;
  3. The evidence sought is in relation to a civil, commercial or criminal matter pending before the foreign court; and
  4. The foreign court is a court of competent jurisdiction.

Once this statutory hurdle is met, a Canadian court may grant an order for the enforcement of letters rogatory. Lantheus Medical Imaging Inc. v Atomic Energy of Canada Ltd., 2013 ONCA 264 at ¶ 56. The decision to enforce letters rogatory is discretionary and is driven by principles of international comity and the inherent value of international judicial cooperation. Riverview-Trenton, ¶ 40. The presumption is that foreign letters rogatory will be given full force and effect “unless it is contrary to public policy or otherwise prejudicial to the sovereignty or the citizens of the jurisdiction to which the request is directed.” Perlmutter v. Smith, 2020 ONCA 570 at ¶ 21.

In Lantheus, the Ontario Court of Appeal recently endorsed a non-exhaustive list of criteria to guide courts in exercising their discretion:

  1. the evidence sought is relevant;
  2. the evidence sought is necessary for trial and will be adduced at trial, if admissible;
  3. the evidence is not otherwise obtainable;
  4. the order sought is not contrary to public policy;
  5. the documents sought are identified with reasonable specificity; and
  6. the order sought is not unduly burdensome, bearing in mind what the witnesses will be required to do, and produce, were the action to be tried.

These (or similar) criteria have been referred to and applied in other provinces, including British Columbia (EchoStar Satellite Corporation v. Quinn, 2007 BCSC 1225 at ¶ 38; Angus v. Transnational Automotive Group Inc., 2010 BCSC 576 at ¶ 35ff) and Alberta (Presbyterian Church of Sudan v Talisman Energy, Inc., 2006 ABQB 634 at ¶ 8).

Letters rogatory are typically enforced by way of an application (an expedited proceeding with evidence by way of affidavit). Typically, U.S. counsel will swear an affidavit in support of the letter of request.

Practice Tips

Avoid Overbreadth

To increase the likelihood of enforcement, letters rogatory should provide reasonable clarity as to the topics they wish to examine; broadly defined subject matters or broad, boilerplate requests are typically not well-received by Canadian courts. Third Point LLC v. Fenwick, 2011 ONSC 2068 at ¶ 45. Furthermore, the court may narrow a request if the supporting materials sustain only a more circumscribed request. Perlmutter, ¶ 50.

In Third Point LLC v. Fenwick, an Ontario court refused to enforce a letter rogatory in part because its scope was overbroad, stating that “the areas to be explored should not be the subject of guesswork. The letters of request should outline the topics to be covered with reasonable clarity.” Id., at ¶ 45.

Show Steps Taken to Get the Evidence Elsewhere

A Canadian court will consider whether evidence of the same value sought from the Canadian person to be examined cannot otherwise be obtained in the U.S. See Riverview-Trenton, ¶ 59; Lantheus, ¶¶ 60-65; Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462 at ¶19. The applicant may therefore wish to include evidence regarding the steps taken to obtain the evidence cooperatively or from other parties or witnesses outside Canada.

Consider Public Policy Concerns

Canadian courts will not enforce letters of request that violate Canadian public policy. The court will consider, for instance, whether discovery will violate the witnesses’ constitutional rights, affect the rights of third parties, or compel privileged evidence. See, e.g. Glegg v. Glass, 2019 ONSC 6623 at ¶¶ 122, 133. Furthermore, Canadian discovery rules require that parties in receipt of discovery information are bound by a deemed or implied undertaking to use the evidence solely for the purposes of the proceeding (and not, for example, to commence new litigation). Pecarsky v. Lipton Wiseman Altbaum & Partners, 1999 CarswellOnt 1775 (Ont. SCJ) at ¶ 30; Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 30.1. Canadian courts will often require the party seeking to enforce letters rogatory to comply with this undertaking rule. AstraZeneca LP v. Wolman, 2009 CanLII 69793 (ON SC) at ¶¶ 60-61. Canadian courts also have the discretion to require that the witness receive the same protections as are available in Canada, including the ability to refuse to answer objectionable questions. Lafarge Canada Inc. v. Khan, 2008 CanLII 6869 (ON SC) at ¶ 63.

Costs

Unlike in the United States, Canada has a “loser pays” cost rule. A party is typically entitled to costs for each successful step of the proceeding. However, costs are in the discretion of the court and in some cases, successful applicants for letters rogatory have been denied costs or even held responsible for a portion of the respondent’s legal fees. The Scoular Company v. Detlefsen, 2016 ONSC 4001; j2 Global v. B.C. et al, 2010 ONSC 3868. Given the burdens imposed on a third-party witness, it is not uncommon for the applicant to provide an undertaking as to costs.

Letters rogatory, or letters of request, require planning and coordination with local counsel. It is ideal for Canadian counsel to be engaged early in the process. Canadian counsel should be given the opportunity to comment on the draft letter of request and work with their U.S. counterparts to develop the evidence required to ensure that the application is successfully enforced.

Byron Shaw is a partner at McCarthy Tétrault LLP in Toronto, Ontario. Aya Schechner, a law student intern at McCarthy Tétrault LLP, assisted with this Practice Point.


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