Obtaining Evidence from Canada: Enforcing Letters Rogatory North of 49

Detailed communication between American and Canadian counsel and early coordination help to enforce letters rogatory in Canada

Often in litigation, parties need to obtain evidence from a witness outside the jurisdiction where the litigation is ongoing. When that witness is uncooperative and resident in Canada, parties to foreign lawsuits can use letters rogatory (sometimes called letters of request), which can result in the witness being compelled to produce documents and be examined under oath. The resulting evidence can then be used in the foreign trial. While this article focuses on letters rogatory in the American context, the principles discussed here are also generally applicable to letters rogatory from other countries. 

Letters Rogatory: Judicial Requests for Assistance

A letter rogatory is a written request for help by one court to another, in this case by a foreign court to a Canadian court, asking it to order that a witness in Canada provide evidence for use in a lawsuit in the foreign court. Such requests are necessary because, under Canadian law at least, foreign courts have no jurisdiction in Canada. So, for example, a standard American witness or document subpoena has no effect in Canada and Canadian witnesses will generally ignore them.

Procedure for Obtaining Letters Rogatory

Once you determine that you have a witness resident in Canada unwilling to assist you in litigation, you must lay the appropriate groundwork for obtaining, and later enforcing, letters rogatory. These are intertwined processes, as the enforcement proceedings are often based on what was presented to the American courts through the initial application for the letters rogatory.

An important preliminary step is to eliminate all other avenues for obtaining the evidence through the American courts. It may be, for example, that the evidence is in the control (if not the possession) of one of the American parties. In such circumstances, the parties should seek disclosure through the American courts, and to the extent necessary, apply for orders requiring that disclosure.

Where evidence is not otherwise available, parties may consider applying for the issuance of a letters rogatory. Letters rogatory are often issued in a standard letter form, detailing the witness or witnesses to be examined, the evidence sought and other procedural tools for the gathering of the evidence (such as videotaping the live testimony). Since it is this document, the letters rogatory, which will form the basis for evidence gathering in Canada, it is important to have input from your Canadian counsel counterparts in drafting it and ensuring it has all requisite aspects necessary for your case. It is also important to consult with Canadian counsel at this early stage to ensure that the letters rogatory contain evidence requests that are enforceable in Canada, under Canadian law.

In some American states, letters rogatory are applied for with pro forma material. American courts grant such applications, sometimes without a hearing and without notice to the other American parties. Such procedure is a recipe for trouble when enforcing the letters rogatory in Canada. It is far preferable to obtain the letters rogatory with notice to the other parties in the American litigation, so that they have few, if any, grounds to contest the enforcement in Canada (since, as we discuss below, they must be named as respondents to the Canadian enforcement proceeding so that they are bound by the court order). As well, it is important to have fulsome materials at the issuance application, including an explanation of how the evidence sought is relevant to the American proceeding and how it will assist the American court in deciding that case. There have been instances where the underlying American application materials for obtaining the letters rogatory were too "thin" on why the information was relevant to the American action, and the Canadian court refused to enforce those letters rogatory.

Procedure for Enforcing Letters Rogatory

Once the letters rogatory has been signed and issued by the American court, a certified copy should be obtained and forwarded to Canadian counsel. That document will be appended to a petition, which will set out the procedural history of the American proceeding, the reasons for the letters rogatory and detailed information regarding the evidence sought. This material will often mirror much of the information contained in the fulsome American issuance material, but set out in such a way as to conform with Canadian pleadings requirements.

Accompanying the petition will be one or more affidavits that provide the Canadian court with sworn testimony, which must be on personal knowledge, not information and belief, that the contents of the petition are true. Given the nature of the petition, which includes litigation history, the affidavit is often sworn by counsel in the American action who has personal knowledge of the events. That affidavit may attach documents that provide support for enforcement, including the pleadings in the American proceeding.

Once filed, the proposed Canadian witness and the other parties to the American proceeding must be served with the Canadian enforcement materials. It is common for the American parties to take no position on enforcement (or to consent to enforcement) and to waive the right to respond, provided they are given the opportunity to review the evidence obtained through the letters rogatory process.

Once served (individuals must be personally served and corporations may be served according to the relevant provincial incorporation statute), the proposed Canadian witness will have an opportunity to file a response and contest the enforcement of the letters rogatory. It will be in the discretion of the Canadian court whether to enforce the letters rogatory with, or without, modification.

Of course, you can always negotiate with the witnesses about enforcement of the letters rogatory, the result of which should be encapsulated in an entered Canadian court order. In fact, the enforcement of most letters rogatory is resolved this way.

Engaging the Discretion of the Canadian Court

The examination of a Canadian witness under letters rogatory is fundamentally different from a traditional American deposition in several respects. Most importantly, the examination is not a deposition-style discovery of a potential witness. Rather, it is American counsel calling their own witness at trial. Everything about enforcing the letters rogatory in Canada flows from that key difference.

Letters rogatory from foreign courts are generally granted, unless they are contrary to Canadian public policy or otherwise prejudicial to Canadian sovereignty or citizens. Enforcement of letters rogatory in Canada is governed by the Canada Evidence Act and equivalent provincial legislation. In exercising their judicial discretion whether to enforce letters rogatory under these statutes, Canadian courts generally consider:

• whether the evidence sought is relevant to the foreign lawsuit;

• whether the evidence sought is relevant to the foreign lawsuit;

• whether the evidence is necessary for the foreign lawsuit and will be introduced at its trial if admissible;

• whether the evidence is obtainable in any other way;

• whether enforcing the letters rogatory would be contrary to Canadian public policy;

• whether any documents sought to be produced are identified with reasonable specificity; and

• whether enforcing the letters rogatory would be unduly burdensome to the Canadian witness, having in mind what he or she would be required to do were the lawsuit tried in Canada.

There is a wealth of Canadian jurisprudence on these considerations, emphasizing the importance of early coordination between American and Canadian counsel to ensure that the letters rogatory obtained from the American court addresses these considerations properly.

The jurisprudence interpreting and applying these considerations highlight several differences between American and Canadian approaches to litigation. Some brief examples:

• In considering relevance, Canadian courts want to understand why the evidence sought is relevant to the American proceeding. Relevance is based on the Canadian standard, focusing primarily on how the evidence sought relates to issues raised in the pleadings of the underlying American action.

• Evidence sought must not only be relevant to the American proceeding, but also necessary to it. Consequently, broad-reaching "fishing trips" for evidence in Canada are rarely successful.

• The likelihood of successfully enforcing a request for evidence through a letters rogatory is greatly increased where that evidence is only obtainable through enforcement. If there are other options for obtaining the evidence, those must be exhausted prior to the commencement of enforcement proceedings in Canada.

• Under Canadian law, the evidence obtained under a letters rogatory must be for use in the trial of the American proceeding. Consequently, it is preferable to ensure that you seek in your letters rogatory all evidence necessary to allow any documents obtained to be actually used in that trial — including evidence relating to the authentication and custody or copying of documents, to overcome any possible admissibility objections.

Letters Rogatory Enforcement and Cost-saving Tips

For letters rogatory to be enforceable in Canada, the evidence must not be obtainable any other way — meaning the American parties cannot obtain the evidence from each other or non-party witnesses through the American action and the Canadian witness has refused to voluntarily produce the information. Practically speaking, this requires the evidence before the Canadian court to include a request to the witness to provide the necessary evidence and their refusal to do so. (Of course, if the witness does produce the requested information there is no need for letters rogatory.)

Again, an examination under a letters rogatory is not a deposition. Be focused and specific in your requests for documents and topics for examination. Explain the relevance of all evidence sought in the materials supporting issuance of the letters rogatory with reference to the issues raised in the American pleadings. Failure to do so may result in the letters rogatory not being enforced, regardless of what additional information later is supplied to the Canadian courts.

The enforcement of the letters rogatory will be limited by its terms. If you don’t ask for it, you won’t get it. The Canadian court will not give you something the American court has not asked it to give you.

Consequently, be sure to include in the letters rogatory the correct personal and corporate names of the witnesses. Be sure to include, if applicable, whether you seek to examine the witness in his or her personal or representative capacity.

If you want a transcript or videotape of the examination, ask for it in the letters rogatory. If you want a specific person to oversee the process (as a "commissioner"), ask for that person by name or title. Make sure that appropriate "alternative" language is included, so that the Canadian court can substitute a different commissioner in place of the requested one if necessary.

Talk to Opposing Counsel First

Organize several dates for the examination of the witness that work for all the parties involved in the American litigation. This will allow Canadian counsel to more easily schedule the examination.

Be Wary of Confidentiality Issues

To enforce the letters rogatory, as mentioned above, Canadian counsel must file in court a petition with supporting materials. That supporting material may include documents subject to a confidentiality order or agreement in the American jurisdiction. Be sure to obtain prior approval for use of such documents in enforcing the letters rogatory, as all documents filed with the Canadian court will (absent a hard-to-obtain sealing order) be public.

Poor Drafting Will Increase Costs

If the American application materials for obtaining the letters rogatory are "thin," the Canadian courts may refuse to enforce the letters rogatory. In some circumstances, the court may allow the parties to apply again if better materials are supplied to the American court and new letters rogatory issued. Avoid the substantial extra costs of that process by drafting complete material for your application for letters rogatory in the first place.

You May Have to Pay Costs of the Witness

As the Canadian-resident witness is being compelled to give evidence in a case to which they are not a party, the Canadian courts will likely grant him or her some compensation for his or her preparation and examination. That amount is entirely within the discretion of the court. In a document-heavy case, it could be significant.

Before embarking on this process, consider how important the witness’s evidence really is to the American lawsuit. Perhaps consider a cost-sharing agreement with opposing parties in the American litigation. Be sure to preserve any rights you may have to be reimbursed for costs related to the examination in the American litigation.

The Court May Impose Restrictions

Just because an evidentiary request is contained in validly issued letters rogatory, it will not necessarily be enforced by the Canadian court. The request must meet the considerations outlined above, and may be modified by the court in any way it sees fit, bearing in mind the issues of international comity and the burden placed on the proposed witness.

The court may also impose restrictions on how the evidence may be used in the American proceeding, including destruction requirements. In certain circumstances, counsel may need to coordinate and obtain American confidentiality or sealing orders, or provide other assurances to the court that sensitive information will be protected and not used for any purpose other than the American proceeding.

Once the letters rogatory is issued by the American court, Canadian counsel must file in Canada a petition, supported by affidavits, to enforce it. If Canadian counsel has worked alongside American counsel from the outset preparing the letters rogatory materials, there should be little delay between the issuance of the letters rogatory and the filing of the petition.

Canadian counsel will then serve the filed petition and affidavits on the witness and the other American parties. If the address of the witness is unknown, it may take some time to find and serve him or her. Once served, the witness will have 21 days (in British Columbia) to respond to the petition. The American parties will have 35 days; 49 if they are international (again, in British Columbia; other jurisdictions in Canada may impose different timelines). An application to enforce can be heard soon after the time for everyone to respond has expired or all parties have waived the period for response.

Be sure to consider any discovery cut-offs in the American lawsuit, and allow enough time to enforce the letters rogatory and examine the witness. Sixty days from the issuance of letters rogatory to the examination is a good rule of thumb. Shorter timelines may be possible in true emergencies.

Detailed Communication

Ideally, the terms of an examination under letters rogatory will be resolved through negotiation with the witness and the other American parties. However, if this proves impossible, American counsel must make sure that they are in the best possible position to enforce the letters rogatory in Canada by application to the Canadian courts. This is best done through detailed communication between American and Canadian counsel from the beginning of the issuance process, and by filing complete materials in both courts.