By: I. Jamie Arabi – Litigation Group

Occasionally, litigants must obtain evidence from individuals that live in another country. This may be desirable or necessary where a witness in another jurisdiction has vital information or documents that, if produced, would benefit the litigant’s case.

To obtain that evidence, the litigant may seek a letter of request, also known as a letter rogatory, from the court in his or her jurisdiction. Once issued, the foreign court must enforce the letter. This article highlights the procedures and law regarding the enforcement of letters of request in Ontario.

Obtaining the Letter of Request

Litigants and their counsel often learn that an Ontario resident has relevant evidence during the pre-trial examination and trial preparation phases. After investigating the witness’ whereabouts, counsel should request the witness’ cooperation. If the witness refuses to give evidence or produce documents voluntarily, counsel should then prepare a letter of request.

The presiding court, known as the “requesting court,” issues the letter in which it seeks the foreign court’s judicial assistance. The letter contains details about the parties, the nature of the proceedings, the identity of the witness, and the evidence to be obtained (e.g., questions to be put to the witness or documents or property to be produced or inspected), among other items.

Once the requesting court has issued the letter of request, the baton is passed to local counsel in Ontario. Until the letter of request is enforced in Ontario, it wields no legal force.

Enforcement in Ontario: The Legal Test and Factors Considered by Courts

Local counsel will commence an application in Ontario for an order giving effect to, or enforcing, the letter of request. Counsel will prepare materials, including a supporting affidavit. Then, the application record must be served upon the witness and filed with the court.

Effective supporting affidavits will address the statutory requirements and persuade the court to exercise its discretion to give effect to the letter of request. That discretion is guided by the six factors described below.

The Canada Evidence Act and Ontario’s Evidence Act permit courts to enforce letters of request. Under those statutes, Ontario courts may only enforce a letter of request if:

1. the foreign court is desirous of obtaining evidence that has been duly authorized by commission, order, or other process of the foreign court;
   
2. the witness from whom evidence is sought is in the jurisdiction of the court being asked to make the order;
   
3. the evidence sought concerns a proceeding pending before the foreign court; and
   
4. the foreign court is a court of competent jurisdiction.

If those conditions have been met, the court may exercise its discretion to grant an order enforcing the letter of request. In doing so, the court considers the following six, non-exhaustive factors:

1. The court will determine whether the evidence sought is likely to be relevant to the issues in the underlying, foreign litigation. The court will not give effect to letters of request that support a litigant’s fishing expedition.
   
2. The applicant must prove that the evidence sought is necessary for trial and, if admissible, will be adduced at trial. Ontario courts have enforced letters of request where the evidence sought was to be used before trial.
   
3. Courts are less likely to enforce letters of request where the evidence is obtainable through some other means. The applicant should demonstrate that the evidence sought is unique and that the impugned witness is the only source of that evidence.
   
4. The court will not enforce letters of request that would infringe upon public policy or otherwise be prejudicial to Canadian sovereignty. Courts will not, for instance, give effect to letters of request that would force an Ontario witness to breach a duty, privilege, or confidentiality.
   
5. Any documents sought for production should be identified with reasonable specificity. Where no one particular document is sought, courts prefer that they be identified by class or category, date range, and document type.
   
6. The court will consider whether the order sought is unduly burdensome. The applicant should demonstrate that the relief is not unnecessarily broad and that it would not result in unfairness or unreasonable expense to the witness.
   

A Note for Litigants and Counsel Seeking to Obtain Evidence in Ontario

The six factors should be considered not only by local Ontario counsel, but also by counsel in the requesting court’s jurisdiction. Counsel preparing the letter should anticipate local counsel’s evidentiary burden and include details that will supplement the affidavit in support of enforcement.

Both foreign and local counsel are well-advised to canvass the applicable laws in both jurisdictions. For example, if a litigant seeks to examine an Ontario witness, counsel should ascertain which technical rules of evidence apply.

The process of obtaining letters of request and seeking their enforcement is procedural in nature. However, courts do not issue and enforce them as a matter of course. Litigants and counsel ought to take care to understand the governing law at all stages. They should carefully prepare the affidavits and other materials with due regard to the relevant legal test and factors.

For more information on this topic, contact Jamie Arabi at jarabi@mindengross.com, or any member of Minden Gross LLP’s Litigation Group.

This article is intended to provide general information only and not legal advice. This information should not be acted upon without prior consultation with qualified legal advisors.