Harper Grey’s Salman Bhura and Adam Way discuss the steps required to successfully enforce letters rogatory in Canada, highlight different issues that can arise, and offer strategic considerations to assist those seeking to obtain evidence from witnesses through this process.
In our globalized world, where countries have closer economic and cultural ties, it is increasingly common for parties in litigation to require evidence from witnesses outside of their jurisdiction. The reality is that witnesses and documents do not stay put and will often ‘spillover’ into a foreign jurisdiction.
If the witness in Canada does not cooperate, the foreign party may be required to look to the courts for assistance through issuance and enforcement of a letters rogatory, also known as letters of request, to get access to the witness whose evidence or documents are being sought. This process is unique, with several specific requirements that must be met to ensure a successful outcome.
This article provides an overview of the letters rogatory process in Canada, with a focus on British Columbia. We discuss factors the court will consider when asked to enforce these types of orders from a foreign court along with strategic considerations to assist those seeking to obtain evidence from witnesses located in British Columbia.
Enforcing Letters Rogatory in Canada
The legal authority to enforce a request for letters rogatory from a foreign court is set out in the Canada Evidence Act.[1] The enforcement of letters rogatory is guided by the interest of international comity and judicial assistance.[2] In British Columbia, the starting point in responding to a request for enforcement of letters rogatory from a foreign court is the presumption that the request will be granted unless it would be contrary to Canadian public policy or would otherwise be prejudicial to the sovereignty of its citizens.[3]
However, the court is required to undertake a substantive analysis and consider several factors before agreeing to enforce a letters rogatory from a foreign court.[4] It is important to be aware of these considerations to ensure that they have been addressed in the original letters rogatory obtained from the foreign court. In addition, courts in British Columbia have broad powers to make directions on important procedural aspects, such as the terms of the examination of the local witness or the nature of the documents being sought.
Key Factors
British Columbia courts consider several factors when determining whether to give effect to a letters rogatory requests from a foreign court.[5]
1. Does the witness have evidence relevant to the foreign proceeding?
The party seeking to enforce the letters rogatory must demonstrate that the witness may have evidence relevant to the claim in the foreign proceeding. It is also important to tie the scope of the examination or documents sought to the issues that are raised in the pleadings in the foreign matter.
The question the court will consider is whether, on the balance of probabilities, the petitioner has shown that the witness may have evidence relevant to the claim in the foreign proceeding.[6] Provided that this can be answered in the affirmative based on the affidavit evidence presented, the requirement will be satisfied.
2. Whether the evidence is necessary for trial and will be adduced at trial if admissible.
While the primary purpose of the letters rogatory is to obtain evidence for the purpose of trial, this element will be met, even if it also includes elements of discovery as well.[7]
The issue of necessity also involves a consideration of the evidentiary link between the evidence being sought and the parties in the foreign litigation. This, in part, relates to the “relevance” factor and the next factor, namely whether the evidence is otherwise obtainable.
3. Whether the evidence is otherwise obtainable.
This is often a contentious issue, especially from the perspective of the local witness from whom the evidence or documents are being sought. The party seeking to enforce the letters rogatory is not required to exhaust all the evidence of other potential witnesses before seeking to obtain the evidence through a letters rogatory. Even if there is some is overlap between the evidence the witness has and another witness that may be accessible, the courts will not necessarily refuse to enforce the order. However, it is helpful to show that the witness has some evidence that is not otherwise accessible.
