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.
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.