Through "letters rogatory" or "letters of request", a court asks for the help of a foreign court to obtain evidence from a foreign non-party witness for a domestic legal proceeding.
In Canada, this often arises in the context of US actions — a US court will issue a letter of request seeking, for example, an Ontario court's assistance in obtaining documentary or oral evidence from a witness located in Ontario. The Ontario court will then consider the statutory prerequisites to enforcement and discretionary principles like comity, public policy, and the potential for prejudice to Canadian sovereignty.
In this context, tension can arise when letters rogatory originate from US courts. This is because the US approach to "discovery" — the process of obtaining relevant evidence prior to trial — is much broader than it is in Canada. As a result, a US court may sometimes request evidence that goes beyond what a person or entity in Ontario would be required to produce in domestic litigation.
This situation played out in the recent case Hospira Healthcare v. Rotsztain, 2023 ONSC 4283. In Hospira, the moving parties were defendants to a US pharmaceutical dispute. Although the lawsuit involved US companies as parties, it was alleged that an Ontario company was set up to effect a contractual breach. The letters rogatory sought documentary and oral evidence from Jack Rotsztain, an Ontario lawyer who was an officer of, and counsel to, the Ontario company.
The court refused to enforce the letter of request, finding that although the four statutory requirements were met, none of the applicable discretionary factors were met.1 Notably, it found that a deposition under the terms requested would violate Canadian sovereignty because, among other things, it would infringe on recognized Canadian principles respecting the sanctity of solicitor-client privilege.
Hospira also contains a useful discussion of the differences between US and Canadian approaches to pre-trial discovery, and the impact of these differences on the letters rogatory analysis. In Hospira, the court found that the evidence sought was not "relevant" (in the sense required by Ontario law) because the request was so broad that it constituted a "fishing expedition". Further, the court noted that that Mr. Rotsztain and the Ontario company at issue were not parties to the US litigation, and that, under Ontario law, non-party discovery would not have been ordered.
The court in Hospira relied on an earlier case of the Ontario Court of Appeal in this context: Actava TV, Inc. v. Matvil Corp., 2021 ONCA 105. There, the Court of Appeal outlined significant differences between US and Ontario law relating to discovery. For example, the court noted that under US law, information is discoverable if there is "any possibility" that it "may" be relevant. By contrast, under Ontario law, there is a higher standard of actual relevance. Pursuant to the analysis in Actava, the fact that US discoveries are broader in scope does not necessarily bar the enforcement of a letter of request; however, "the Ontario court must be satisfied that the requirements of Ontario law are met."
Hospira is a strong reminder that letters of request by US courts that seek production beyond what is permissible under Ontario law may be refused by an Ontario court.
Footnote
1. In this case, the court considered whether the evidence sought was (1) relevant, (2) necessary for trial, (3) not otherwise obtainable, (4) not contrary to Canadian public policy, (5) was identified with reasonable specificity, and (6) not unduly burdensome.
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