Canada: Court Of Appeal For Ontario Affirms Order Compelling Cross-Border Examination Of Alleged Price-Fixing Chocolatier In U.S. Class Proceedings

In a decision which stands as an example of the practical approach taken by Canadian courts in balancing the rights of cross-border deponents with the principles of sovereignty and comity, the Court of Appeal for Ontario in Treat America Limited v. Leonidas ("Treat America") has confirmed an order compelling the former CEO of a Canadian company to attend at a deposition in Canada to give evidence in a U.S. class action, despite the fact that the same former CEO is the target of a parallel criminal investigation in Canada.  

In dismissing the appeal, Justice Feldman, for the Court, found that it would not infringe the appellant's right against self-incrimination under theCanadian Charter of Rights and Freedoms (the "Charter") nor would it be unduly burdensome for him to give the requested testimony. However, in light of the appellant's submissions, Justice Feldman went on to apply additional protective conditions to the order to ensure that any potential prejudice resulting from the enforcement of the order would be minimized.


The class proceedings in Treat America arose out of a criminal investigation by Canada's Commissioner of Competition (the "Commissioner") into an alleged conspiracy to unreasonably enhance the price of chocolate candy in Canada. The investigation became public when the Informations to Obtain sworn in support of certain search warrants obtained and executed by the Commissioner were filed in court and became publicly available. Subsequently, a number of parallel class actions were commenced in several U.S. jurisdictions against Canadian and U.S. chocolate manufacturers. Claims against all but one of the Canadian defendants have been dismissed, but the Canadian criminal investigation is still ongoing.

In order to collect evidence from Canadian witnesses in relation to the alleged price fixing conspiracy, the plaintiffs in the U.S. class proceedings sought, and were granted, a Letter of Request for International Judicial Assistance (the "LOR").  The LOR sought an order from an Ontario court compelling the appellant to appear for a deposition and provide oral testimony under oath in the U.S. class proceedings. The appellant opposed the order, as he was contemporaneously a target of the ongoing criminal investigation being conducted by the Commissioner and the Competition Bureau. Although not a party to the U.S. class proceedings, the Commissioner had been granted intervener status in the litigation, reaching agreements with plaintiffs' counsel and making submissions to the Court with the intention of facilitating the taking of depositions from Canadian witnesses, including those requested under the LOR. Given the Commissioner's involvement in the U.S. Class Proceedings, the appellant argued that the enforcement of the LOR would be contrary to Canadian public policy in respect of his right against self-incrimination, as well as being unduly burdensome on him.

Despite these objections, the order enforcing the LOR was granted by the application judge in Ontario. Crafting an order that would "adequately protect the appellant's immunity rights in respect of his compelled testimony", Justice Campbell of the Ontario Superior Court allowed the order, while appending certain terms and conditions to it; namely, the Commissioner would be required to provide notice to the appellant upon any attempt to seek access to the transcripts, or of any move by another party to make the evidence public prior to trial.

On appeal, the appellant argued that the application judge had erred in concluding that enforcement of the LOR would not breach his Charter rights, and that it would not be unduly burdensome. The crux of the appeal rested on the appellant's concern that by forcing him to testify in the U.S. class proceedings, the Commissioner would have access to the deposition, providing a roadmap of the appellant's defence and prompting the Commissioner to adjust his strategies and position in the ongoing criminal proceedings in Canada.


The Court of Appeal dismissed the appeal, upholding the application judge's order while appending additional conditions to the LOR. Writing for the Court, Justice Feldman began her analysis by laying out the six-part test for enforcement of an LOR, as set out in Friction Division Products Inc. v. E.I. du Pont de Nemours & Co. (1986), 56 OR (2d) 722 which provides that before giving effect to letters of request (also known as letters rogatory) the evidence must establish that: (1) the evidence sought is relevant; (2) the evidence sought is necessary for trial and will be adduced at trial, if admissible; (3) the evidence is not otherwise obtainable; (4) the order sought is not contrary to public policy; (5) the documents sought are identified with reasonable specificity; and (6) the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried in Ontario (para 25) (the "Friction test").  Justice Feldman went on to discuss the relationship of the principles of sovereignty and comity in the context of enforcement of a LOR.

Finding that the appellant's arguments fell under parts (4) and (6) of the Friction test, i.e., that the order sought not be contrary to the public interest and that it not be unduly burdensome, Justice Feldman addressed these arguments in turn.

Enforcement Would Not Breach the Appellant's Charter Rights

Addressing the appellant's first ground of appeal, Justice Feldman determined that the application judge had not erred in concluding that the order to enforce the LOR could be made without breaching the appellant's Charter rights. Enforcement of the LOR would not be contrary to public policy or sovereignty.

Noting, first, that the Supreme Court of Canada has stressed the importance of the "open court principle" requiring a serious risk of danger to the administration of justice to justify restricting the contents of court proceedings, Justice Feldman reviewed the scope of existing protections against self-incrimination as enshrined in section 7 of the Charter. While expressing the Court's concern that the appellant's Charter rights be "scrupulously protected and preserved", Justice Feldman found that existing rules in Canadian constitutional and evidentiary law provided considerable protections to the appellant. These include the "use immunity" rule protecting a person who is compelled to give evidence in a prior proceeding from exposure to the risk of self-incrimination, as derived from section 13 of the Charter, as well as the "implied undertaking" rule, preventing parties from disclosing information obtained during civil discoveries to the authorities, subject to narrowly prescribed exceptions. While a person ordered to give evidence pursuant to a LOR does not have access to the protections of the U.S. Constitution, the appellant had the benefit of all of the protections of the Canadian forum, including the Canada Evidence Act and the Charter.

With respect to the appellant's concern that the Commissioner could obtain compelled evidence not for use in court, but for the purpose of the investigation, Justice Feldman found that it was not necessary for the Court to decide whether Charter protection against self-incrimination may extend to precluding a prosecutor from obtaining access to compelled testimony before charges are laid. In oral argument the Commissioner had agreed not to pursue access to this compelled testimony; this agreement, once guaranteed in a condition to enforcement of the LOR, would be sufficient to dispose of this issue.

Enforcement is Not an Undue Burden on the Appellant

Turning her mind to the appellant's second ground of appeal, Justice Feldman swiftly determined that the terms of the LOR and accompanying protective orders were sufficient to adequately protect the appellant from prejudice, and did not cause an undue burden to the appellant. Justice Feldman found that, as rigorous examination of the record is required at the certification stage in U.S. class proceedings, and as the U.S. litigation incorporated not only class proceedings but also individual cases with no certification barrier, testifying on the merits of the action would not impose an "undue burden" on the appellant. Addressing the appellant's concern that his testimony could be directly or indirectly disclosed to the Commissioner, the Justice noted that the Commissioner had indicated that it would not attend the deposition, nor would it share in the content of the appellant's examination, and had no present intention to seek the deposition transcript.

In order to solidify the appellant's protections from undue disclosure of the examination contents to the Commissioner, Justice Feldman imposed the additional condition to the order requiring that the Commissioner not seek or receive information regarding the contents of the appellant's examination. In addition, the Commissioner is precluded from seeking a court order for access to the appellant's testimony unless the appellant becomes a witness for the prosecution, or is charged, without first obtaining an order from the Ontario Superior Court. With the addition of these protections, Justice Feldman expressed confidence that the Commissioner would not be privy to the content of the appellant's examinations short of its use in public in the U.S. litigation, or until any trial of the appellant in Canada.


Having determined that the application judge had not erred in the application of the law, and after imposing the above-noted additional conditions to enforcement of the LOR, the Court of Appeal was satisfied that any potential prejudice to the appellant had been "significantly minimized". Accordingly, the appeal was dismissed.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions