Canada: How To Obtain Evidence From Canada: Enforcing Letters Rogatory

Last Updated: June 4 2014
Article by Daniel Anthony

In today's globalized and mobile society, it is increasingly common for parties in litigation to require evidence from witnesses outside of their jurisdiction. Obtaining evidence from Canadian witnesses for foreign proceedings is not a matter of simply issuing a subpoena. Instead, parties must use letters rogatory (sometimes called letters of request) to compel witnesses in Canada to produce documents and be examined under oath. This evidence can then be used at trial in the foreign proceeding. While Canadian courts are ready, willing and able to enforce such requests, it is important to confer with Canadian counsel at the outset to ensure that the applicable test is met.

Letters rogatory is a formal written request from one court to another for assistance. Generally, a foreign court will ask a Canadian court to compel a witness in Canada to provide evidence to be used in the foreign proceeding. By way of example, the following are some recent matters handled by our Firm:

  • Compelling the oral examination of two former senior management employees of the plaintiff who had retired in Canada and had refused to give evidence.
  • Compelling a market leading Canadian company to provide its U.S. customer list and sales volumes for specific parts that could be used to infringe a U.S. patent in order to identify potential defendants for a U.S. lawsuit.
  • Compelling the examination of inventors living in Canada and no longer employed by the plaintiff.
  • Compelling a Canadian internet service provider to identify a website owner.

Canadian courts have broad discretion under the Canada Evidence Act (and equivalent provincial legislation) to enforce letters rogatory and will generally do so unless the request is determined to be contrary to public policy or prejudicial to Canadian sovereignty. Practically speaking, Canadian courts commonly apply a six-factor test when deciding whether to enforce letters rogatory:

  1. Relevance: The evidence sought must be relevant to the foreign proceeding as determined by the issues raised in the pleadings.
  2. Necessity: The evidence must be necessary for the fair determination of the foreign proceeding and admissible to be introduced at trial.
  3. Not otherwise obtainable: Foreign counsel must have exhausted alternative means of obtaining the evidence, such as from parties within their jurisdiction, or on consent.
  4. Not contrary to public policy: The request should not require something from a witness that could not be required of a witness in a Canadian proceeding.
  5. Specificity: The documents requested and topics for oral examination must be identified with reasonable specificity such that the court and witness can clearly understand their scope.
  6. Not unduly burdensome: The request must not be unduly burdensome for the Canadian witness in comparison to what would be required in a Canadian proceeding.

Obtaining and enforcing letters rogatory will involve cooperation between foreign and Canadian counsel throughout the process.

As the first step, foreign counsel will identify the desired evidence located in Canada and confirm that it cannot be obtained or compelled through local channels. Canadian counsel may be involved in contacting the proposed Canadian witnesses to inquire whether they will agree to provide the evidence on consent.

If the witnesses do not agree to cooperate, foreign counsel will prepare a request to the local court for issuance of letters rogatory. In the usual case, the adverse party in the foreign litigation should be given notice of the request and the opportunity to oppose it. Otherwise the adverse party may be permitted to raise its objections before the Canadian court. Canadian counsel should be consulted in drafting the letters rogatory since it is the core document setting out the specific request for assistance to the Canadian court. Canadian counsel can advise on elements to be included in the letters rogatory to facilitate its issuance and enforcement, such as a confirmation that the foreign court is prepared to provide reciprocal relief.

Common mistakes to be avoided when obtaining letters rogatory include:

  • Making the scope of the request overly broad - this may lead the court to determine that the six-factor test has not been met.
  • Failing to clearly set out any desired conditions of the documentary production or witness examination, e.g. that documents be certified copies or that the examination be videotaped.
  • Failing to ensure that the pleadings are up-to-date in order to meet the test that the evidence requested be relevant to an issue set out in the pleadings.

Once the letters rogatory is issued by the foreign court, Canadian counsel will apply to the Canadian court for an order enforcing the letters rogatory and formally serve the witness with notice of the process. Often the witness will prefer not to contest the proceeding, but will instead negotiate the scope and details of the evidence to be produced. If the matter is contested, a sworn affidavit will be required setting out the facts in support of the six-factor test. This affidavit is typically sworn by an individual with personal knowledge of the relevant facts. The parties will also file written arguments and attend an oral hearing before the court issues its decision on whether to enforce the letters rogatory.

If the request is found to meet the six-factor test, the Canadian court will issue an order setting out full details of the evidentiary production required, such as the scope, the timing, and any payment to the witness. The Canadian court maintains complete discretion to modify the scope of the letters rogatory request, but will normally only amend the scope of the request to the extent that it does not meet the six-factor test.

Experienced Canadian counsel can facilitate the letters rogatory process in order to assist foreign litigants to obtain evidence from Canada in a timely and cost effective manner. In this regard, Canadian courts have shown a willingness to assist foreign courts by enforcing reasonable requests for assistance that are not contrary to public policy or prejudicial to Canadian sovereignty.

For further information regarding letters rogatory, please contact a member of our firm's Litigation group.

The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

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.

Daniel Anthony
In association with
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
Check to state you have read and
agree to our Terms and Conditions

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.

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 by clicking here .

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.


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.