last blog post, I discussed mechanisms for obtaining evidence
in the possession of a third party. What if you need to procure
evidence located in Ontario for litigation proceeding in another
jurisdiction? I turn now to the matter of letters rogatory.
Counsel may discover that vital documents or a key witness are
beyond the jurisdiction of the court in which the case is pending
and that they cannot be procured or summonsed in the usual manner.
Because Canada is not a signatory to the Convention on the
Taking of Evidence Abroad in Civil or Commercial Matters 1970,
when evidence must be compelled from a witness in a Canadian
jurisdiction, counsel will need an order from the court in which
the litigation is proceeding requesting the assistance of the
foreign court, or letters rogatory.
Where the desired evidence or witness is located in Ontario,
counsel must commence an application in Ontario Superior Court in
the judicial district where the witness and/or documents are
located. The application must be supported by affidavits which
detail the proceeding and the need for the requested evidence.
Letters rogatory must meet four pre-conditions in accordance
with the Canada Evidence Act and the Ontario Evidence
Act: (1) the request for evidence must have been duly
authorized by a foreign court; (2) the witness whose evidence is
sought must be within the jurisdiction of the court which is the
subject of the request; (3) the evidence must be sought in relation
to proceeding pending before the foreign court; and (4) the foreign
court must be a court of competent jurisdiction.
If this threshold is met by the request, an Ontario court will
determine whether to enforce the letters rogatory. The court in
Re Friction outlined six factors to guide the courts in
whether to exercise its discretion to enforce a letter of request
for evidence or testimony from an Ontario witness for a foreign
proceeding. Letters rogatory must be precise and both the evidence
presented in support of the request and the request itself must
comply with all applicable rules of evidence and the following
the evidence sought is relevant;
the evidence is necessary;
the evidence is not otherwise obtainable;
the order sought is not contrary to public policy;
the documents are identified with reasonable specificity;
the order sought is not unduly burdensome.
If insufficient evidence is presented in support of letters
rogatory, the successful respondent could be entitled to its
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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