Just Being Neighbourly: Obtaining Evidence from Canada Through Letters of Request

The relationship between the United States and Canada is one of the closest friendships and partnerships on the globe. They share the world’s longest undefended border, over $620 billion in trade and—at least in many states—a love of hockey. However, despite the evermore entwined degree of commerce between the two nations, it may come as a surprise to learn that there is no treaty governing the process of obtaining evidence between the two countries in the event of a legal dispute.

When evidence from Canada is required in a U.S. proceeding, the appropriate means of obtaining that evidence is through letters of request, also known as letters rogatory. As a U.S. court does not have jurisdiction over a Canadian witness or entity in possession of the relevant evidence, it may issue letters of request to a Canadian court, asking for judicial assistance with the proceeding.

Whether or not to enforce a letter of request remains within the discretion of a Canadian judge. However, the Supreme Court of Canada has confirmed that the principles of comity, mutual deference, and respect mean that decisions of a foreign court—particularly one whose governing principles and traditions are so closely aligned with those of Canada—are entitled to be given full force and effect, unless the decision or order is contrary to public policy or otherwise prejudicial to the sovereignty or citizens of Canada.

The enforcement of letters of request in Canada requires a two-step process:

• Step One: The U.S. party seeking the evidence must bring a motion in a court in the United States to obtain the letter of request.
• Step Two: The party must then bring an application in a Canadian court to enforce the letter of request in Canada.

Each step is discussed further below. However, once it becomes apparent to the American attorney that relevant evidence or an important witness is located in Canada, a Canadian lawyer should be consulted at the earliest opportunity in order to coordinate the approach.

Step One: The United States Motion

The U.S. party must start by bringing a motion before the court in which the litigation is pending. The materials before the U.S. court should reflect the factors that the Canadian court will consider when deciding whether to enforce the letter of request (discussed further in Step Two below).

Some additional points to consider:

• Both the letter of request and the affidavit should be as specific as possible about the Canadian evidence sought. The Canadian court will not broaden the request to compel production or testimony beyond what was ordered by the U.S. court.
• Canadian discovery law involves a narrower scope of relevance than what is familiar to most American attorneys. There are also limited rights of discovery against third parties. Once the letters are before the Canadian court in Step Two, the court retains the discretion to narrow the scope of the request and can reject the application altogether on the basis that the information sought was too broad and constituted a “fishing expedition.”
• The materials should establish that justice cannot be served between the U.S. parties unless the Canadian evidence is made available, and that the evidence cannot be obtained without the assistance of the Canadian court. A bare assertion that the evidence is otherwise unavailable will not suffice. Instead, the applicant will need to point to unsuccessful efforts to obtain the evidence, such as prior requests for the documents that were refused by the Canadian entity.

Step Two: The Canadian Motion

Once the U.S. court issues the letter of request, the litigant must then bring an application for enforcement to the Canadian court in the province or territory in which the evidence or witness is located. The procedural rules and applicable laws vary somewhat among the Canadian provinces and territories. For example, the province of Quebec applies the civil law to private legal disputes, in contrast to the other provinces and territories of Canada, which maintain a common law tradition. The procedure discussed herein reflects the law of the province of Ontario.

There are four statutory preconditions to the enforcement of a letter of request, set out in the provinces’ Evidence Acts:

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

If these preconditions are satisfied, the judge will consider whether the following additional discretionary factors weigh in favor of enforcing the letters of request:

1. Is the evidence sought directly relevant to the foreign dispute?
2. Is the evidence sought necessary for trial, and will it be adduced at trial?
3. Is the evidence otherwise obtainable?
4. Is the order sought contrary to public policy?
5. Are the documents sought identified with reasonable specificity?
6. Is the order sought unduly burdensome, bearing in mind what the relevant witnesses would be required to do were the action to be tried in Canada?

The materials before the Canadian court should address each of these discretionary factors. However, the failure to establish a discretionary factor will not necessarily be fatal to the application.

While Canadian courts are inclined to show deference to U.S. courts in recognition of the principle of comity, letters of request will not simply be rubber stamped in Canada. Accordingly, American counsel should work closely with their Canadian neighbors from start to finish to increase the likelihood of enforcement.