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Many of our clients are businesses or individuals that have contracts with US customers. In fact, for many Canadian businesses, US based clients are their main source of revenue. As with any business relationship, disputes may sometimes arise that have cross-border implications.
A common example of a cross-border issue that we assist on is dealing with Letters Rogatory, which are essentially formal letters from a foreign court to a court in Canada for some type of judicial assistance, and the most common type of assistance is in taking of evidence. This could be either by way of answering written interrogatories or examining an individual in Canada under oath.
Sections 60 of the Evidence Act and 46 of the Canada Evidence Act provide this Court with the necessary statutory jurisdiction to enforce the Letters Rogatory (aka Letters of Request).
Section 60(1) of the Evidence Act provides:
Similarly, s. 46(1) of the Canada Evidence Act provides:
Each of the Evidence Act and the Canada Evidence Act provides the Court in Canada with the discretion to give effect to the Letters Rogatory.
The prerequisites to the exercise of discretion by this Court are similar in the two statutes. Courts will consider whether giving effect to the Letters Rogatory will be in the interests of international comity, which is assessed by the following four-part test:
Furthermore, Ontario courts have set out a list of six criteria for assessing whether to give effect to letters of request in particular circumstances. The Court of Appeal has made clear that apart from the fourth criterion, these are not rigid preconditions, but rather “useful guideposts” to the exercise of judicial discretion. Nevertheless, in seeking enforcement of letters rogatory, the applicant should establish that:
In almost all of the cases that we deal with, the foreign party comes to us with an order from a foreign court (i.e. a Letter Rogatory / Letter of Request). However, there are instances where a Canadian Court has compelled the taking of evidence from an individual in Canada without an official Letters Rogatory / Letter of Request. For the Canadian Court to do so, the applicant would have to convince the Canadian Court that it was the intention of the foreign court to compel the taking of evidence from an individual / entity in Canada. Without this clear intent, the application would sure fail.
In most cases, the foreign law firm or company comes to us with a Letters Rogatory (aka Letters of Request) that both parties in the foreign proceeding have agreed to. However, in some rare instances, the foreign court has issued a Letters Rogatory (aka Letters of Request) on a motion from only one of the foreign parties. If that’s the case, the application process to enforce the Letters Rogatory (aka Letters of Request) will likely take more time because the foreign party that did not move the Court for the Letters Rogatory will likely be contesting the application.
In order to enforce a Letters Rogatory (Letters of Request), Canadian Courts will always require the foreign parties to obtain an undertaking from all parties – including the lawyers – involved in the foreign proceeding confirming that the evidence obtained will only be used for the foreign proceeding and for no other purpose. By doing so, the Canadian Court ensures that the individual giving evidence is afforded the same protection that she or he would have had under the Canadian “Deemed Undertaking” rule.
If the parties will not sign such an undertaking, then a protective order to the same effect will have to be obtained prior to the deposition taking place. If we’re dealing with a joint Letters Rogatory (aka Letters of Request), it’s likely that the parties will agree to the undertaking. However, in cases where the Letters Rogatory was obtained only by one party, it’s likely that a protective order will have to be obtained.
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We’ll have to prepare and file an application in an Ontario Court.
It usually takes about 8 – 10 weeks from when we file the application to get a hearing date and then from there a few more weeks to schedule the deposition. However, it could take much longer if you’re seeking evidence from a company or individual that is being especially non-cooperative or if the defendant in the foreign action is also causing delays.
Contact us for an initial consult at no charge. After we clear conflicts, we will review the Letter Rogatory and discuss it with you.