Canada: Letters Rogatory: Inter-Jurisdictional Evidence Gathering

Last Updated: October 11 2012
Article by Michelle Maniago

Most Read Contributor in Canada, November 2016

When faced with an uncooperative potential witness resident in British Columbia, parties to foreign lawsuits may use letters rogatory (sometimes called letters of request) which, if enforced by the British Columbia courts, can compel the witness to produce documents and be examined under oath. The resulting evidence can then be used at the foreign trial. British Columbia businesses should be familiar with how the British Columbia courts deal with letters rogatory, in case one of their employees is such a witness or they are involved in foreign litigation and need the evidence of a British Columbia resident.

ENFORCEMENT CONSIDERATIONS

Enforcement of foreign letters rogatory in British Columbia is governed by both the British Columbia and Canada Evidence Acts. Requests from foreign courts are usually granted, unless the request is contrary to Canadian public policy or otherwise prejudicial to Canadian sovereignty or citizens.

In exercising their discretion to enforce foreign letters rogatory, the British Columbia courts consider:

  1. whether the evidence sought is relevant to the foreign trial;
  2. whether the evidence is necessary for the foreign trial and will be introduced at that trial if admissible;
  3. whether the evidence is obtainable in some other way;
  4. whether enforcing the letters rogatory would be contrary to Canadian public policy;
  5. whether any documents sought are identified with reasonable specificity; and
  6. whether enforcing the letters rogatory would be unduly burdensome on the witness, having in mind what he or she would be required to do were the lawsuit tried in British Columbia.

Previously foreign requests would not be granted if directed to discovery (rather than to evidence for trial), but recent decisions have modified that position. The key questions now to be considered in discovery situations are the relevance of the evidence to the foreign trial and the burden imposed on the witness.

LETTERS ROGATORY TIPS

When in need of a witness' evidence for use in a foreign trial, businesses should consult with counsel in that foreign jurisdiction and in the witness' resident jurisdiction before obtaining letters rogatory from a foreign court, as requirements for obtaining and enforcing letters rogatory may differ between jurisdictions.

For foreign letters rogatory that are intended to be enforced in British Columbia, British Columbia businesses should bear in mind the following tips, to save time and money:

  1. Be Detailed British Columbia courts reject broad-ranging "fishing expeditions" for evidence. So, be specific in your requests for documents and topics for examination. Explain the relevance of all information sought. Failure to be detailed may result in the letters rogatory not being enforced, regardless of what additional information is supplied to the British Columbia courts by counsel.
  2. Set Out Everything Needed The letters rogatory will be read strictly, so be sure to include the correct personal and corporate names of the witnesses. If you want a transcript or videotape of the examination, ask for it in the letters rogatory. If you want a specific person to oversee the process (as a "commissioner"), ask for that person by name or title. Make sure that appropriate "alternative" language is included, so that the British Columbia courts can substitute a different commissioner in place of the requested one if necessary.
  3. Talk to Opposing Counsel Obtain several dates for the examination of the witness that work for all the parties involved in the foreign litigation. This will allow British Columbia counsel to more easily schedule the examination.
  4. Be Wary of Confidentiality Issues To enforce the letters rogatory, British Columbia counsel must file a petition with supporting materials (usually an affidavit sworn by a foreign lawyer who deposes that the facts on which the petition is based are true). The supporting material may include documents subject to a confidentiality order or agreement in the foreign jurisdiction. Be sure to obtain prior approval for use of such documents in enforcing the letters rogatory, as they will be public once filed with the British Columbia court.
  5. Costs Will Increase with Poor Drafting If the foreign application materials for obtaining the letters rogatory are "thin", the British Columbia courts may refuse to enforce them. They may allow the parties to apply again if better materials are supplied to the foreign court and new letters rogatory issued. Avoid the extra costs of that process by drafting complete material in the first place.
  6. You May have to Pay Costs of the Witness As the witness is being compelled to give evidence, the British Columbia courts will likely grant him or her some compensation for his or her preparation and examination. The amount is entirely within the discretion of the court. In a document-heavy case, it could be significant. Before embarking on this process, consider how important the witness' evidence is to the foreign trial. Perhaps consider a cost-sharing agreement with opposing parties in the foreign litigation. Be sure to preserve any rights you may have to obtain costs related to the examination in the foreign litigation.
  7. Timing is a Key Consideration Once the letters rogatory is issued by the foreign court, British Columbia counsel must file a petition with supporting materials to enforce it. If British Columbia counsel has worked alongside the foreign counsel from the outset preparing the letters rogatory materials, there should be little delay between the issuance of the letters rogatory and the filing of the petition in British Columbia to enforce it.

    British Columbia counsel will then serve the filed petition and supporting materials on the witness and the other foreign parties. If the address of the witness is unknown, it may take some time to find him or her. Once served, the witness will have 21 days to respond to the petition. The other parties may have longer, depending on where they are. An application to enforce can be heard ten days after the time for everyone to respond has expired. Be sure to consider any discovery cut-offs in the foreign lawsuit, and allow enough time to enforce the letter rogatory and examine the witness.

Ideally, the terms of an examination under letters rogatory will be resolved through negotiation with the witness and other foreign parties. However, if this proves impossible, you must make sure that you are in the best possible position to enforce the letters rogatory in the British Columbia courts. This is best done through detailed communication between counsel obtaining and enforcing the letters rogatory, and filing complete materials in the foreign and British Columbia courts.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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