The Superior Court of Ontario recently granted an application
for the enforcement of letters rogatory to take evidence of, and
compel the production of documents by, two non- party Ontario
residents in a consolidated multidistrict class action in the US.
The Court held that the conditions for enforcement were met and,
importantly, rejected the arguments of the Respondents to the
application that permitting the examinations would violate the
respondent's rights against self-incrimination....
In Neuwirth v. DeCosta,  O.J. No.6363, the
Applicants were seeking to enforce letters rogatory issued by the
presiding case management judge in the multidistrict US class
action alleging price fixing of flexible polyurethane foam
("foam"). As is rather common in this type of litigation,
similar class actions have been initiated in Canada. Also, as is
common in the competition realm, both the Department of Justice in
the US and the Commissioner of Competition in Canada have opened
investigations into allegations of price fixing of foam. There was
no evidence before the Court that the respondents were targets in
these investigations. Two of the respondents – the
application in respect of a third respondent was dismissed as he
had retired from the company prior to the commencement of the
alleged conspiracy – are named in the US complaints as having
participated in the conspiracy as well as being named in Statements
of Claim issued in Canada in respect of the foam conspiracy.
Dealing with the conditions for enforcement, the Court undertook
an analysis of the conditions that must be met as articulated by
the Court of Appeal in Re Friction. The Respondents took
no position with respect to some of the requirements; rather,
significant emphasis was placed on public policy factors with the
Respondents arguing that the proposed order circumvents the class
proceedings process in Ontario for the following reasons:
Ontario law does not permit pre-certification discovery;
the US discovery process would permit Canadian plaintiffs a
"roadmap" for the Canadian case; and,
the US plaintiffs would be permitted greater discovery that
would be permitted under Canadian law.
The Court wholeheartedly disagreed with all of these
submissions. It was irrelevant that there is no pre-certification
discovery; protective orders will remedy the hypothetical mischief
of US materials falling into Canadian plaintiff hands; the scope of
the discovery can be restricted to the limited issues on which the
letters rogatory were based. The Court held that, indeed, it would
be contrary to public policy not to grant foreign requests simply
as a result of different procedural stages in an action:
"failure to give effect to a reasonable request from a foreign
court that is not otherwise a violation of Canadian sovereignty
would offend public policy...[I]t is obviously in our interest to
facilitate cooperation in legal matters as a matter of enlightened
It seems clear that in cases such as these, absent compelling
arguments in respect of the conditions that must be met for
enforcement (here the record appears to have been sparse or silent
on most of the requirements) resisting enforcement on the basis on
very different pre-trial procedures will not be successful.
The respondents further resisted enforcement arguing that the
proposed examination would violate their rights against
self-incrimination. While likely not to have impacted the ultimate
reasoning of the Court, the Respondents indicated that they were
unaware as to whether they were targets of the Canadian inquiry.
While one cannot know all of the tactical considerations
contemplated by counsel, the respondents could have, pursuant to
subsection 10(2) of the Competition Act inquired about the
status of the inquiry and in so doing learned as to whether they
were targets of the investigation. In any event, it was held that
the examinations do not so infringe and that an order could be
fashioned to protect their rights under the Charter.
If arguments about self incrimination are not to be successful
in these contexts, it becomes ever more important for counsel to
ensure that any order issued enforcing letters rogatory should
explicitly and in detail articulate all of the protections afforded
to potential deponents. In this case, in addition to what is
described as a comprehensive US protective order, the proposed
order is to contain conditions that the Respondents testify with
the protections of s.7 and 13 of the Charter and of the
Canada and Ontario Evidence Acts.
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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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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