In connection with an insurance coverage dispute in New York, Lantheus Medical Imaging (LMI) sought production of documents from Atomic Energy of Canada Ltd (AECL) and the attendance of one its employees at an examination under oath. LMI obtained letters of request from the US District Court which it sought to enforce in Ontario.

Problem: AECL is a Crown corporation. Under the US Foreign Sovereign Immunity Act, the District Court was not competent to issue letters rogatory if it had failed to consider whether sovereign immunity applied to the subject of the request (if immunity applied, the court could not subpoena a foreign sovereign or its agent). LMI contended that AECL’s status would have been obvious to the court from the materials that had been filed, including a copy of an access-to-information request LMI had sent to AECL.

Pollak J of the Ontario SCJ disagreed: Lantheus Medical Imaging Inc. v AECL, court file CV-11-00427161 (Ont SCJ, 27 July 2011). There was nothing in the US court order to indicate that it was aware of the jurisdiction and immunity issue. Occasional references in written submissions to AECL as a ‘Crown agency’ were not enough. It was not proper for the Ontario court to undertake the immunity analysis. LMI’s application was dismissed although LMI was free to try again in New York with the proper question.