Letters Rogatory

In my last blog post, I discussed mechanisms for obtaining evidence in the possession of a third party. What if you need to procure evidence located in Ontario for litigation proceeding in another jurisdiction? I turn now to the matter of letters rogatory. Counsel may discover that vital documents or a key witness are beyond the jurisdiction of the court in which the case is pending and that they cannot be procured or summonsed in the usual manner. Because Canada is not a signatory to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, when evidence must be compelled from a witness in a Canadian jurisdiction, counsel will need an order from the court in which the litigation is proceeding requesting the assistance of the foreign court, or letters rogatory.

Where the desired evidence or witness is located in Ontario, counsel must commence an application in Ontario Superior Court in the judicial district where the witness and/or documents are located. The application must be supported by affidavits which detail the proceeding and the need for the requested evidence.

Letters rogatory must meet four pre-conditions in accordance with the Canada Evidence Act and the Ontario Evidence Act: (1) the request for evidence must have been duly authorized by a foreign court; (2) the witness whose evidence is sought must be within the jurisdiction of the court which is the subject of the request; (3) the evidence must be sought in relation to proceeding pending before the foreign court; and (4) the foreign court must be a court of competent jurisdiction. If this threshold is met by the request, an Ontario court will determine whether to enforce the letters rogatory. The court in Re Friction outlined six factors to guide the courts in whether to exercise its discretion to enforce a letter of request for evidence or testimony from an Ontario witness for a foreign proceeding. Letters rogatory must be precise and both the evidence presented in support of the request and the request itself must comply with all applicable rules of evidence and the following requirements:

• the evidence sought is relevant;

• the evidence is necessary;

• the evidence is not otherwise obtainable;

• the order sought is not contrary to public policy;

• the documents are identified with reasonable specificity; and

• the order sought is not unduly burdensome.

If insufficient evidence is presented in support of letters rogatory, the successful respondent could be entitled to its costs.

In my next blog posts, I will address the enforcement of US judgments and arbitral awards in Ontario.