Letters rogatory: tips for compelling Canadian evidence in foreign court proceedings

U.S. civil subpoenas and civil subpoenas from other foreign courts have no legal effect in Canada. Canada is not a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil of Commercial Matters. The only way to compel Canadian evidence in a civil foreign proceeding is to apply for “letters rogatory” or “letter of request.” This involves applying to the foreign court to request that it prepare a “letter of request” to the Canadian court. In the letter of request, the foreign court explains to the Canadian court the basis for the request and the need for the evidence. The Canadian court considers the request and decides whether it should be granted.

The general rule is that letters rogatory requests are given full force and effect unless contrary to public policy¹. While there are many examples of successful letters rogatory requests granted by Canadian courts (including requests from U.S. courts to obtain evidence relevant to allegations in U.S. class proceedings, even though the evidence related to ongoing criminal investigations in Canada and concerns about self-incrimination)², there are equally many examples of requests that are declined ³.

Seeking early input from Canadian counsel can smooth the path towards a successful letters rogatory request. Some tips include:

Letters rogatory requests can be used to obtain testimony and documents for trial or for pre-trial procedures.
Canadian courts will consider whether the evidence sought is relevant, its necessity, whether documents are identified with reasonable specificity, and whether the request is “unduly burdensome.” ⁴
If possible, plan for the possibility of a letters rogatory request well in advance. Time is needed to apply to the foreign court and to then apply to the Canadian court. While steps can be taken to bring the request on short notice, the target of the request must be served with material and given a chance to respond. If the target seeks to challenge the request, this can involve additional delays, including appeals.
Consult Canadian counsel before applying to the U.S. or foreign court to obtain the letter request. Counsel can provide input on shaping the letter so that it addresses the needs of the proceeding, while at the same time addressing the legal tests applied by the Canadian court.
Most disputes about letters rogatory requests involve complaints about the scope and cost of documentary production. U.S. rules are very different from Canadian ones. Consulting Canadian counsel to “Canadianize” these requests is of great assistance. Document requests should be as concise and specific as possible. Offering the witness compensation for reasonable expenses can pre-empt arguments about burdensome requests.
By consulting Canadian counsel in advance, the letter request in Canada is more likely to proceed unopposed, at lower cost, with fewer delays. This is especially important in Canada, which has a "loser pay" costs regime. An unsuccessful request can result in cost awards. A cooperative approach with opposing counsel will equally help with scheduling convenient dates and locations for the examination.

¹ R. v. Zingre, [1981] 2 S.C.R. 392 at p. 401.
² Treat America Ltd. v. Nestle Canada Inc., 2011 ONCA 560.
³ See e.g. Third Point LLC v. Fenwick, 2011 ONSC 2068; Pecarsky v. Lipton Wiseman Altbaum & Partners, [1999] O.J. No. 2004.
⁴ Re Friction Division Products, Inc. and E.I. Du Pont (1986), 56 O.R. (2d) 722 (HCJ).