Courts in the United States frequently seek assistance from Canadian courts to compel residents to produce evidence, either by way of document production or examinations. These letters of request for judicial assistance, or “letters rogatory”, are statutorily permitted under Canadian federal and provincial legislation. Canadian courts give significant weight to these US judicial requests and will rely heavily on the principle of international comity1 in determining whether to enforce the letters rogatory. That being the case, however, US counsel would be wise to diligently prepare supporting materials for both the US court issuing the letters rogatory, as well as for the Canadian court giving effect to those letters.
Law of Enforcing Letters Rogatory
The notion of international comity between nations remains the central pillar guiding a court’s decision to enforce letters rogatory. That is, the Canadian courts will give effect to the laws and judicial decisions of the jurisdiction requesting assistance out of mutual deference and respect.2 A judicial request is given full force and effect unless it is contrary to the public policy of the Canadian jurisdiction or otherwise prejudicial to the sovereignty or the citizens of the US jurisdiction.3
Within this backdrop of international comity, the Canadian court will consider whether the US applicant satisfies the statutory pre-conditions to give effect to the letters rogatory. In Ontario, section 46(1) of the Canada Evidence Act4 and section 60(1) of Ontario’s Evidence Act5 provide the statutory authority for courts to give effect to letters rogatory. These statutory pre-conditions require the following:
- The letters rogatory must come from a court or tribunal of competent jurisdiction (s. 60(1) OEA);
- That court or tribunal must have duly authorized the obtaining of the testimony (s. 60(1) OEA);
- Similarly, the court or tribunal must be desirous of obtaining the testimony (s. 46(1) CEA);
- The request for evidence must be in relation to an action, suit, or proceeding pending before the US court (s. 60(1) OEA; s. 46(1) CEA); and
- The Canadian witness against which the letters rogatory are sought is within the Canadian jurisdiction receiving the request (s. 60(1) OEA; s. 46(1) CEA).
Once these statutory pre-conditions are met, the US applicant must persuade the court that he or she satisfies the non-exhaustive factors outlined in Re Friction Division Products, Inc. and E. I. Du Pont de Nemours & Co. Inc. et al. (No. 2) (1986).6. This requires that the US applicant prove the following:
- the evidence sought is relevant;
- the evidence sought is necessary for the US litigation and will be adduced at trial, if admissible;
- the evidence is not otherwise obtainable;
- the order sought is not contrary to public policy;
- the documents sought are identified with reasonable specificity; and
- the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried in the Canadian jurisdiction.7
Letters rogatory should not be seen as an all-or-nothing attempt to secure evidence. Rather, the Canadian court can narrow the scope of the request and impose or modify terms regarding the production of evidence (e.g. that the examination be held pursuant to Canadian laws).
Drafting and Issuing the Letters Rogatory
Drafting the letters rogatory for the US court’s consideration allows the US applicant to craft a request that can convince the Canadian court to order the production of the sought-after evidence. The letters rogatory should affirm the statutory preconditions and should persuasively apply the Friction factors to the facts of that case. In particular, the letters should be able to adequately explain the general relevance of the documents and their necessity for the US litigation. The scope of the evidence should also be sufficiently narrow to satisfy the Friction test’s “reasonable specificity” factor.
Not be overlooked, however, is the fact that the Canadian court may also consider what materials were submitted to the US court in support of issuing the letters rogatory. Case law suggests that courts have the authority to go behind the letters rogatory to determine what the US court is seeking, and may deny their enforcement if it does not comply with Canadian law.8 It is therefore important that a robust record of evidence satisfying the Friction factors be put forth to both the US court issuing the letters rogatory, as well as to the Canadian court enforcing those letters.
In Ontario, the applicant issues a notice of application in the Superior Court of Justice to seek enforcement of the letters rogatory.9 The applicant may wish to discuss with the respondent the possibility of voluntarily complying with the letters rogatory before or after issuing the notice of application to avoid unnecessary expenses or to bolster the “not otherwise obtainable” part of the Friction test.
Rule 38 governs the procedure behind applications in Ontario. The applicant will need to file an application record and factum at least 7 business days before the hearing. Rule 39.02 provides that the applicant may cross-examine any party’s affiant on their affidavit.
In most contested hearings in Canadian civil litigation, the unsuccessful party typically pays the successful party a portion of costs (which includes disbursements and attorney’s fees). However, applications to enforce letters rogatory are significantly different in this respect. Even if the Canadian court enforces the letters rogatory, the US applicant may have to pay a portion (or the entirety) of the respondent’s costs. The following paragraph from Neuwirth v. Da Costa summarizes the unsettled law surrounding the payment of costs in these proceedings:10
There is authority for the proposition that a non-party is entitled to full indemnification no matter what the outcome: j2Global Communications, Inc. v. Protus IP Solutions Inc,  O.J. No. 5762; j2Golbal Communications, Inc. v. B.C.,  O.J. No. 2880; GST Telecommunications Inc. v. Provenzano,  B.C.J. No. 378, 73 B.C.L.R. 72 (Sup.Ct.). There is also authority for the proposition that costs should be payable at a substantial indemnity rate: Oticon Inc. v. Gennum Corp.,  O.J. No. 1082. As my colleague D.M. Brown J. pointed out in that case, courts have also ordered partial indemnity costs and no costs in matters involving the examination of non-parties.
While the US applicant may still seek some portion of costs following a successful result, they should be prepared to pay the respondent’s full indemnity costs for the application, even if the US applicant ultimately prevails on the application. This is in addition to any costs that the Canadian court may order the US applicant to pay the respondent for expenses regarding the collection of evidence and attending an examination pursuant to the letters rogatory.
US Applicants seeking to compel evidence from a Canadian witness should retain Canadian lawyers early on to assist with drafting the letters rogatory and strategizing the pending application for enforcement. While Canadian courts are generally receptive to these requests for judicial assistance, failure to satisfy the statutory pre-conditions and Friction factors can be fatal to a US applicant’s chances of securing that evidence. To improve their chances of a successful result, US applicants should consider these legal requirements while preparing the letters rogatory, and should provide robust evidence to satisfy those requirements before the US and Canadian courts. Considerations should also be given to the potential adverse cost consequences, even in the event of a successful outcome, and the fact that Canadian courts can flexibly vary the letters rogatory as they deem appropriate.
- The Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye, (1990) 3 SCR 1077 defined “international comity” to mean “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws”. ↵
- Zingre v. The Queen et al., (1981) 2 SCR 392. ↵
- Ibid. ↵
- R.S.C., 1985, c. C-5 (“CEA”). ↵
- R.S.O. 1990, c. E.23 (“OEA”). ↵
- 1986 CanLII 2827 (ON SC) (“Friction” ↵
- Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para 60 (“Lantheus”). ↵
- Presbyterian Church of Sudan v. Taylor, (2005) O.J. No. 3822 at para 32. ↵
- Rule 14.05(2); OEA, s. 60(1); CEA, s. 46(1). ↵
- Neuwirth v. DaCosta et al., 2014 ONSC 527 at para 47. ↵