Letters Rogatory are known as Letters of Request in Ontario.
U.S. litigants can use a Letter Rogatory to obtain evidence and
testimony from witnesses within the jurisdiction of Ontario courts.
A Letter Rogatory is a request from a U.S. court that an Ontario
court order individuals or corporations within its jurisdiction to
be deposed by or provide documentary evidence to U.S. litigants.
There is no treaty governing the collection, by U.S. litigants, of
evidence from nonparties in Ontario. The Letter Rogatory is based
on the principle of comity.
Ontario's rules governing discovery are more stringent than
their counter-parts in most, if not all, American jurisdictions. An
Ontario court considering a Letter of Request or Letter Rogatory
from an American court will consider two (2) things:
whether the request is contrary to the sovereignty of Canada;
whether, on a balance of probabilities the court
should exercise its discretion to enforce the Letter of
Request or Letter Rogatory.
Getting Evidence from Foreign Non-Party Witnesses in
The granting of an Order to enforce a Letter Rogatory or a
Letter of Request can be done by way of Application commenced in
the Ontario Superior Court of Justice. The granting of such an
Order is not routine. The Letter Rogatory must be
structured in such a way that the request for witnesses or evidence
is not unduly burdensome on the Canadian witnesses. In some cases
this will mean that the witnesses will have to be paid for the cost
of their attendance or of producing the documents. The U.S.
litigant requesting the information must meet a high threshold in
order to demonstrate for the Ontario court that its discretion
should be exercised to compel testimony or documentary
An Ontario court considering a Letter Rogatory from an American
court will apply a test based on statutory and common law. What you
ask for and how you ask for it will effect whether and to
what extent the request is granted.
What Will the Ontario Court Need?
The burden of convincing the Ontario court to exercise its
discretion to enforce a Letter Rogatory rests upon the U.S.
litigant bringing the request to the court in Ontario. Among other
things, the Ontario Court will consider:
Is the evidence relevant and necessary for the U.S.
Are the documents and testimony sought identified with
reasonable specificity or is the party seeking them on a
Is the request unduly burdensome on the Ontario resident?
Will the evidence be used for pre-trial discovery or for
Is the evidence otherwise obtainable or duplicative of evidence
given in the foreign proceeding?
What is the effect of Ontario's Rules of
Procedure, notably the "deemed undertaking rule"?
How We Can Help
We can help you pilot your Letter Rogatory all the way from
inception to completion of the depositions. We have both the
knowledge and the experience to help you structure the Letter
Rogatory to ensure the maximum possible discovery rights, the
ability to negotiate with the witnesses to achieve settlement, and
the capacity, skill, and talent to argue the application for
enforcement of the Letter Rogatory at the court.
Following your successful application, Lerners can further
assist you with the logistics of foreign discovery. We have access
to facilities, court reporters certified to take depositions under
the U.S. Federal Rules of Procedure, and the infrastructure to
videoconference or videotape these depositions in-house. Lerners
can provide everything you need to facilitate depositions here in
Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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