In today’s globalized and mobile society, it is increasingly common for parties in litigation to require evidence from witnesses outside of their jurisdiction. Obtaining evidence from Canadian witnesses for foreign proceedings is not a matter of simply issuing a subpoena. Instead, parties must use letters rogatory (sometimes called letters of request) to compel witnesses in Canada to produce documents and be examined under oath. This evidence can then be used at trial in the foreign proceeding. While Canadian courts are ready, willing and able to enforce such requests, it is important to confer with Canadian counsel at the outset to ensure that the applicable test is met.
Letters rogatory is a formal written request from one court to another for assistance. Generally, a foreign court will ask a Canadian court to compel a witness in Canada to provide evidence to be used in the foreign proceeding. By way of example, the following are some recent matters handled by our Firm:
- Compelling the oral examination of two former senior management employees of the plaintiff who had retired in Canada and had refused to give evidence.
- Compelling a market leading Canadian company to provide its U.S. customer list and sales volumes for specific parts that could be used to infringe a U.S. patent in order to identify potential defendants for a U.S. lawsuit.
- Compelling the examination of inventors living in Canada and no longer employed by the plaintiff.
- Compelling a Canadian internet service provider to identify a website owner.
Canadian courts have broad discretion under the Canada Evidence Act (and equivalent provincial legislation) to enforce letters rogatory and will generally do so unless the request is determined to be contrary to public policy or prejudicial to Canadian sovereignty. Practically speaking, Canadian courts commonly apply a six-factor test when deciding whether to enforce letters rogatory:
- Relevance: The evidence sought must be relevant to the foreign proceeding as determined by the issues raised in the pleadings.
- Necessity: The evidence must be necessary for the fair determination of the foreign proceeding and admissible to be introduced at trial.
- Not otherwise obtainable: Foreign counsel must have exhausted alternative means of obtaining the evidence, such as from parties within their jurisdiction, or on consent.
- Not contrary to public policy: The request should not require something from a witness that could not be required of a witness in a Canadian proceeding.
- Specificity: The documents requested and topics for oral examination must be identified with reasonable specificity such that the court and witness can clearly understand their scope.
- Not unduly burdensome: The request must not be unduly burdensome for the Canadian witness in comparison to what would be required in a Canadian proceeding.
Obtaining and enforcing letters rogatory will involve cooperation between foreign and Canadian counsel throughout the process.
As the first step, foreign counsel will identify the desired evidence located in Canada and confirm that it cannot be obtained or compelled through local channels. Canadian counsel may be involved in contacting the proposed Canadian witnesses to inquire whether they will agree to provide the evidence on consent.
If the witnesses do not agree to cooperate, foreign counsel will prepare a request to the local court for issuance of letters rogatory. In the usual case, the adverse party in the foreign litigation should be given notice of the request and the opportunity to oppose it. Otherwise the adverse party may be permitted to raise its objections before the Canadian court. Canadian counsel should be consulted in drafting the letters rogatory since it is the core document setting out the specific request for assistance to the Canadian court. Canadian counsel can advise on elements to be included in the letters rogatory to facilitate its issuance and enforcement, such as a confirmation that the foreign court is prepared to provide reciprocal relief.
Common mistakes to be avoided when obtaining letters rogatory include:
- Making the scope of the request overly broad - this may lead the court to determine that the six-factor test has not been met.
- Failing to clearly set out any desired conditions of the documentary production or witness examination, e.g. that documents be certified copies or that the examination be videotaped.
- Failing to ensure that the pleadings are up-to-date in order to meet the test that the evidence requested be relevant to an issue set out in the pleadings.
Once the letters rogatory is issued by the foreign court, Canadian counsel will apply to the Canadian court for an order enforcing the letters rogatory and formally serve the witness with notice of the process. Often the witness will prefer not to contest the proceeding, but will instead negotiate the scope and details of the evidence to be produced. If the matter is contested, a sworn affidavit will be required setting out the facts in support of the six-factor test. This affidavit is typically sworn by an individual with personal knowledge of the relevant facts. The parties will also file written arguments and attend an oral hearing before the court issues its decision on whether to enforce the letters rogatory.
If the request is found to meet the six-factor test, the Canadian court will issue an order setting out full details of the evidentiary production required, such as the scope, the timing, and any payment to the witness. The Canadian court maintains complete discretion to modify the scope of the letters rogatory request, but will normally only amend the scope of the request to the extent that it does not meet the six-factor test.
Experienced Canadian counsel can facilitate the letters rogatory process in order to assist foreign litigants to obtain evidence from Canada in a timely and cost effective manner. In this regard, Canadian courts have shown a willingness to assist foreign courts by enforcing reasonable requests for assistance that are not contrary to public policy or prejudicial to Canadian sovereignty.