From time to time counsel in the United States or other countries discover that key documents or a key witness are beyond the jurisdiction of the court in which their case is pending (“foreign proceeding”) and cannot be summonsed to produce documents or attend trial in the usual way. This note sets out what is required where those documents or the witness are resident within the Province of Ontario. Similar procedures apply in the other provinces.
Before any step can be taken in Ontario, counsel in the foreign proceeding will need an order or other process from their court requesting the assistance of the Ontario Superior Court. These are often called letters rogatory or letters or request. The nature of the evidence, both documentary and testamentary, being sought should be discussed before the order is made in the foreign proceeding. The reason for this is that the test for relevance and the scope of documentary requests may well differ between the foreign court and the Ontario Superior Court. It is important to focus the request as much as possible to ensure that the Ontario court does not reject the request as a fishing expedition. Where production of documents is sought, the Ontario Superior Court will also require some evidence to establish that the documents sought actually exist and that the Ontario party is likely to have at least copies of them.
It is worth discussing the most convenient means of obtaining the evidence as it is possible to obtain an order that the evidence for the foreign proceeding be by way of video link – in effect having the witness available live at the trial, even though the witness is still physically present in Canada.
The Process in Ontario
The basis for seeking judicial assistance is set out in both the Canada Evidence Act and the Ontario Evidence Act. The federal statute provides as follows:
Order for examination of witness in Canada
46. (1) If, on an application for that purpose, it is made to appear to any court or judge that any court or tribunal outside Canada, before which any civil, commercial or criminal matter is pending, is desirous of obtaining the testimony in relation to that matter of a party or witness within the jurisdiction of the first mentioned court, of the court to which the judge belongs or of the judge, the court or judge may, in its or their discretion, order the examination on oath on interrogatories, or otherwise, before any person or persons named in the order, of that party or witness accordingly, and by the same or any subsequent order may command the attendance of that party or witness for the purpose of being examined, and for the production of any writings or other documents mentioned in the order and of any other writings or documents relating to the matter in question that are in the possession or power of that party or witness.
Video links, etc.
(2) For greater certainty, testimony for the purposes of subsection (1) may be given by means of technology that permits the virtual presence of the party or witness before the court or tribunal outside Canada or that permits that court or tribunal, and the parties, to hear and examine the party or witness.
The Ontario statute provides as follows:
Evidence for foreign tribunals
60. (1) Where it is made to appear to the Superior Court of Justice or a judge thereof, that a court or tribunal of competent jurisdiction in a foreign country has duly authorized, by commission, order or other process, for a purpose for which a letter of request could be issued under the rules of court, the obtaining of the testimony in or in relation to an action, suit or proceeding pending in or before such foreign court or tribunal, of a witness out of the jurisdiction thereof and within the jurisdiction of the court or judge so applied to, such court or judge may order the examination of such witness before the person appointed, and in the manner and form directed by the commission, order or other process, and may, by the same or by a subsequent order, command the attendance of a person named therein for the purpose of being examined, or the production of a writing or other document or thing mentioned in the order, and may give all such directions as to the time and place of the examination, and all other matters connected therewith as seem proper, and the order may be enforced, and any disobedience thereto punished, in like manner as in the case of an order made by the court or judge in an action pending in the court or before a judge of the court.
Payment of expenses of witness
(2) A person whose attendance is so ordered is entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial in the Superior Court of Justice.
Right of refusal to answer questions and to produce documents
(3) A person examined under such commission, order or process has the like right to object to answer questions tending to criminate himself or herself, and to refuse to answer any questions that, in an action pending in the court by which or by a judge whereof or before the judge by whom the order for examination was made, the witness would be entitled to object or to refuse to answer, and no person shall be compelled to produce at the examination any writing, document or thing that the person could not be compelled to produce at the trial of such an action.
Administration of oath
(4) Where the commission, order or other process, or the instructions of the court accompanying the same, direct that the person to be examined shall be sworn or shall affirm, the person so appointed has authority to administer the oath to the person or take his or her affirmation.
The usual practice is to commence an application (a short form of originating process) in Ontario Superior Court in the judicial district where the witness and documents are located. Both the federal and provincial legislation are relied upon. The application is supported by affidavits which spell out the nature of the foreign proceeding, the need for the evidence, and that the evidence is required for trial. A copy of the letters rogatory or letters or request is usually made an exhibit to one of the affidavits. It is usually wise to describe differences in practice so that the Ontario judge will understand why the application is made. For instance, in Ontario the discovery process is different than it is in the United States District Courts. Firstly, in Ontario examinations are of parties, not of witnesses (with rare exceptions for some limited third party discovery). Secondly, in Ontario the process of discovery is different from the process of obtaining evidence for trial. Thus, if an Ontario action needed the evidence of a foreign witness, a motion for letters rogatory would normally be made after discovery was largely concluded. In many foreign courts, including the District Courts, discovery is the mechanism provided for gathering evidence for trial where the witness cannot be summonsed to attend.
The notice of application and the supporting evidence are served on the party sought to be examined. This party must be given at least ten days to respond. In many cases during this period a form of order can be worked out with the responding party. However, the party has the right to resist, and file its own evidence. A court will usually grant them an adjournment for that purpose, and set a timetable for completion of the evidence. All witnesses may be cross-examined on their affidavit in a fashion similar to a deposition. Any additional affidavits, as well as transcripts of the cross-examination are filed in court, along with a form of brief called a factum.
The cost of obtaining an enforcement order can thus vary over a broad range. A third party with no strong connection to either party in the foreign proceeding may be willing to co-operate, but wants a court order as a form of protection. An example of such a third party might be a bank or other party being asked to produce confidential customer information. However, in many cases, such as Canadian subsidiaries of foreign parties that are being sued, every possible objection may be raised. If it is not possible to work out an informal arrangement before letters rogatory are obtained in the foreign proceeding, then it can cost between $10,000 and $20,000 to put the application materials together, depending upon the complexity of the foreign proceeding and the amount of explanation required and to obtain a largely unopposed order. However, if the other party resists and extensive cross-examinations follow, the cost can escalate rapidly. Some years ago there was US litigation alleging price fixing for uranium and the proceedings trying to obtain evidence from Canada went on for years.
After The Order Is Made
Once the order is made, arrangements are made to obtain the documents ordered to be produced, and to examine the witness. The examination of witnesses may be video recorded, if that is desired, and a transcript is also produced. As noted at the beginning, it is even possible to have the evidence provided in the foreign proceeding live by video link.
Even in a largely unopposed matter it may take 6-8 weeks to complete the process of obtaining an order, depending upon the backlog for getting matters into court in the particular judicial district. An opposed matter can take several months. The time required to obtain the letters rogatory in the foreign tribunal also needs to be taken into account in planning.