When a foreign court issues a request for assistance to Canadian judicial authorities asking that a Canadian company be compelled to answer questions in the foreign litigation, what should a Canadian court do? What if the Canadian company is not a party to the foreign litigation, the request for assistance provides no background information about the case, and the request for assistance is not submitted by a litigant from the foreign case but rather by the provincial attorney general who also is not a party to the foreign litigation? The Superior Court of Quebec decided that in such a context, it would not exercise its discretion to order the Canadian company to answer the questions posed by the foreign court.
On July 2, 2014, the Superior Court of Quebec issued an important judgment in the area of foreign letters rogatory under Quebec law. In Dans l’affaire émanant de la Istanbul 3rd Consumer Court, en Turquie: Turanli Elektronik Ithalat San. Tic. Ltd. Sti. v. Sadik Hakan Guris & Procureur Général du Québec & Matrox Graphics Inc., 2014 QCCS 3169, the court concluded it could not exercise its discretion to enforce against Matrox Graphics Inc. (MGI) the request for assistance issued by the Istanbul 3rd Consumer Court. MGI is a computer hardware developer headquartered in Montreal. Its products are sold all around the world.
The foreign request
The request for assistance asked that MGI answer the following three questions:
- “whether the plaintiff Turanli […] is responsible for the service of the product named ‘Matrox Perhelia 256 AGPx8 branded graphic card’ that is the subject of the lawsuit, purchased by the defendant Sadik Hakan Guris from a company in Germany as an end consumer”;
- “whether it [Turanli] is obliged to provide the defendant with service as an authorized service in maintenance and repair of this product”; and
- “whether the plaintiff Turanli […] is the sole authority to sell this product in Turkey.”
As it is, the questions were more legal than factual in nature, and so it was difficult to see how MGI could answer such questions and, in any event, they were impossible to answer without a factual background to understand what exactly was the matter in dispute and what issues were before the Turkish court.
Some additional confusion was injected by the cover letter from the Turkish embassy in Ottawa, addressed to the Canadian Department of Foreign Affairs and International Trade. The cover letter stated that the Turkish court wished to know whether “the Canadian Company ‘Matrox’ […] has given the authorization to the Turkish Company Turanli […] as distributor and technical service/support provider in Turkey for its product Matrox Perhelia 256 AGP-8.” Yet, this question did not appear in the actual request for assistance from the Istanbul 3rd Consumer Court. Was it an additional question or an interpretation of an existing one?
Absence of factual context
In general, Canadian courts favour the enforcement of requests for assistance issued by foreign courts as a matter of international cooperation, unless doing so would conflict with Canadian public-policy principles or civil procedure.
In light of the absence of any factual context of the Turkish litigation, the Superior Court of Quebec concluded it could not issue an order compelling MGI to answer the questions. The relevant statute is the Special Procedure Act, a Quebec provincial law that empowers the Superior Court to enforce foreign letters rogatory against a person in Quebec whose testimony is needed for foreign proceedings. The relevant section in the Special Procedure Act, however, confers a discretionary power to the Superior Court on whether to enforce the letters rogatory before it. In this case, the court decided it would not exercise its discretion to give effect to the Turkish letter of request.
Absence of relevant litigant
In addition to the absence of any factual context, a further deficiency was that whichever Turkish litigant was going to benefit from the questions posed in the request for assistance, that litigant was not an applicant before the Superior Court. Instead, the office of the attorney general of Quebec took it upon itself to be the applicant under the Special Procedure Act presenting the letter of request for enforcement against MGI. Pursuant to its application, the attorney general proposed to examine MGI’s representative with respect to the three questions posed by the Turkish court.
It is unknown why the attorney general took on the role of initiating the application and seeking to conduct an examination of MGI. The critical problem was that the attorney general had no standing to bring such an application since it had no interest in the Turkish litigation. Had the Superior Court ordered enforcement of the letter of request, there would have been the surreal scenario of counsel for the attorney general of Quebec asking questions to a representative of MGI, without either of them being a party to the Turkish litigation, and without either of them or the Superior Court knowing the framework against which to assess the questions.
Treaties and the Canadian constitution
When confronted by MGI’s argument that the attorney general had no standing to bring the application for enforcement of the Turkish letter of request, the attorney general’s response before the Superior Court was that the 1931 Convention Between His Majesty, in Respect of the United Kingdom, and the President of the Turkish Republic Regarding Legal Proceedings in Civil and Commercial Matters (which extends to Canada through exchange of diplomatic notes in 1935) (the Convention) provided the basis for the attorney general to act as an applicant in this matter. While the Convention was acceded to by Canada, the province of Quebec never passed a law making it applicable within the province.
Under Canada’s constitutional structure, a treaty signed by the executive branch of government does not become law unless the treaty is implemented by statute passed by the legislative branch. This is in contrast with certain countries where treaties may be self-executing. Moreover, while the federal government can conclude any treaties with foreign states, if the subject matter falls within provincial jurisdiction, the treaty does not become law in any province unless the province passes a statute implementing the treaty.
The attorney general initially took the position that the provincial Special Procedure Act was the implementing statute for the Convention, even though it makes no mention of the Convention and it was passed by the Quebec legislature years before the Convention was concluded. It was ironic that the attorney general of Quebec was taking a position that would diminish provincial powers and give the federal government the power to bind the province through treaties with foreign states regarding cooperation on matters of civil procedure, a matter of provincial jurisdiction.
However, the attorney general withdrew that position by way of a letter sent to the court subsequent to the hearing. The Superior Court concluded that the attorney general had no standing to bring the application for enforcement of the Turkish letter of request.
The Superior Court judgment stands for the general principle that while Canadian courts encourage international cooperation, the right party must bring forth the application for enforcement of letters rogatory, and that party must provide a complete factual background so the court can properly assess whether to order a person within its jurisdiction to answer questions.
The Special Procedure Act will be replaced by a new regime when Quebec’s new Code of Civil Procedure comes into effect on January 1, 2015. Articles 504 to 506 of the new Code of Civil Procedure constitute the new regime for the enforcement of letters rogatory. Neither the need for the right applicant nor the need for a complete factual background is modified by the new regime.