The nature of complex litigation is such that it often does not
remain confined within one jurisdiction. Complex matters often
cross jurisdictional and even international boundaries.
Cross-border issues can arise when proceedings take place in one
jurisdiction, yet witnesses, parties and records may be located in
For example, a party involved in a complex dispute may want to
obtain the testimony and records of a witness located outside of
the local jurisdiction hearing the dispute. While the local court
does not have the authority to compel a party outside of its
jurisdiction to comply with its orders, it does have the option of
requesting assistance from the foreign court that does have that
authority. Canadian courts are often willing to provide judicial
assistance to foreign courts with respect to discovery and document
The superior trial court of the Canadian province of
Alberta—the Court of Queen's Bench— recently dealt
with an application dealing with the request of an American court
for international judicial assistance, in Richardson v. Shell
Canada Ltd., 2012 ABQB 170. This case, written by the Chief
Justice of the Court of Queen's Bench, Wittmann C.J., provides
an excellent summary of the state of the law pertaining to the
enforcement of letters of request (letters rogatory) within
In Richardson, the United States District Court for the
District of Kansas sent a letter of request for international
judicial assistance to the Alberta Court. The American Court asked
the Alberta Court to direct and order a party to produce a
corporate representative to answer oral questions.
Wittmann C.J. explained that an Alberta court will consider six
factors when it assesses the proper response to a letter of request
from a foreign court:
1. Whether the evidence sought is relevant;
2. Whether the evidence sought is necessary for a trial or for
3. Whether the evidence is otherwise available through some
4. Whether any documents requested have been identified with
5. Whether there is any public policy reason to refuse the
6. Whether the request would place an undue burden on a proposed
witness or witnesses, having regard to the nature of the testimony
The question of relevancy will be examined "through the
lens" of what an Alberta court would consider relevant, with
the potential for refinement based on the foreign definition of
relevancy. Evidence is relevant and material in Alberta if the
information can reasonably be expected to significantly help
determine one or more of the issues raised in the pleadings, or can
help ascertain other evidence which could do so.
If a foreign letter of request is not specific enough, or is too
broad and burdensome, the Alberta Court will modify it on its own
motion. Wittmann C.J. observed that the Alberta Court "is not
reluctant to narrow the scope" of a letter of request,
"nor is it inclined to require a revised [letter of request]
before it considers the merits of what is being
Litigants considering the use of a letter of request should
contact counsel in the Canadian jurisdiction for early assistance.
The more closely the letter of request complies with the Canadian
rules of procedure concerning letters of request, the higher the
probability of success of that request.
In sum, options exist to enable litigants involved in
cross-border disputes to obtain discovery or document production
from Canadian jurisdictions. When doing so, assistance from counsel
in those Canadian jurisdictions should be sought so as to ensure
that the letter of request issuing from the local court will meet
the factors that the Canadian court will require prior to enforcing
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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