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At Zayouna Law Firm, we really take the time and go the extra step to get personally acquainted with our clients and their situations.

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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.

Typical client:

  • A US lawyer/firm,
  • A US based company
  • A Canadian company that does business in the US, or
  • An international business or law firm.

Types of Cases:

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:

  1. (1) Where it is made to appear to the Superior Court of Justice or a judge thereof, that a court or tribunal of competent jurisdiction in a foreign country has duly authorized, by commission, order or other process, for a purpose for which a letter of request could be issued under the rules of court, the obtaining of the testimony in or in relation to an action, suit or proceeding pending in or before such foreign court or tribunal, of a witness out of the jurisdiction thereof and within the jurisdiction of the court or judge so applied to, such court or judge may order the examination of such witness before the person appointed, and in the manner and form directed by the commission, order or other process, and may, by the same or by a subsequent order, command the attendance of a person named therein for the purpose of being examined, or the production of a writing or other document or thing mentioned in the order, and may give all such directions as to the time and place of the examination, and all other matters connected therewith as seem proper, and the order may be enforced, and any disobedience thereto punished, in like manner as in the case of an order made by the court or judge in an action pending in the court or before a judge of the court.1

Similarly, s. 46(1) of the Canada Evidence Act provides:

  1. (1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.

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:

  1. it must appear that a foreign court is desirous of obtaining the evidence;
  2. the witness whose evidence is sought must be within the jurisdiction of the court which is asked to make the order;
  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.

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:

  1. the evidence sought is relevant;
  2. the evidence sought is necessary for trial and will be adduced at trial, if admissible;
  3. the evidence is not otherwise obtainable;
  4. the order sought is not contrary to public policy;
  5. the evidence sought is identified with reasonable specificity; and
  6. the order sought does not impose an undue burden on the person whose evidence is requested, having regard to what the relevant witnesses would be required to do, and produce, were the action to be tried in Ontario.

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.

  1. Is this a Joint Letters Rogatory (aka Letters of Request)?

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.

  1. Will You be Able to Obtain an Undertaking or Will a Protective Order be Needed?

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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Our Team: 

Thankfully, our lawyers have extensive experience dealing with cross-border commercial disputes, including Letters Rogatory (aka Letters of Request), and are ready to advise on such matters if the need arises.

In fact, some of our lawyers are also dual licensed (Ontario and New York) and have even practiced in the US and appeared in New York State Court and US Bankruptcy Court (Southern District of New York) on a variety of corporate, debtor/creditor, and business reorganization matters.

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Frequently Asked Questions about Enforcing a Letters Rogatory (aka Letters of Request)

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.  

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