“Section 60 of Ontario’s Evidence Act provides that where a foreign court has commissioned the taking of evidence for a purpose for which a letter of request could be issued under the rules of the Ontario court, the Ontario court may order the examination of the witness before the person appointed, and in the manner directed by the commission; and it can order the production of documents; and it may give directions as to the time and place of the examination and enforce the order as it would a local order. The Canada Evidence Act contains a comparable provision: Borelli v. Tam, [2006] O.J. No. 3714 (S.C.J.).
The enforcement of Letters Rogatory (now called letters of request in Ontario) is based on the principle of comity of nations: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 42; AstraZeneka L.P. v. Wolman, [2009] O.J. No. 5344 at para. 17 (S.C.J.); R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392 at para. 18. In Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] 3 S.C.R. 1077 at para. 31. Justice La Forest defined comity as “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws”. As a matter of comity, the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction out of mutual deference and respect. A foreign request is given full force and effect unless it is contrary to the public policy of the jurisdiction to which the request is directed or otherwise prejudicial to its sovereignty or to its citizens: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264; Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462 (CanLII), [2007] O.J. No. 2492 (C.A.); R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392; Gulf Oil Corp. v. Gulf Canada Ltd., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39.
The enforcement of Letters Rogatory is discretionary: Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 (C.A.). The requesting court’s decision is entitled to considerable deference and the court receiving the request does not sit as an appeal court from the decision of the requesting court: Azcar v. Royal Bank of Canada, 2018 ONSC 4048 at para. 16 (Ont. S.C.J.); Triexe Management Group Inc. v. Fieldturf International Inc., [2005] O.J. No. 4359 at para 21(Ont. S.C.J.).
Nevertheless, although the domestic court considering whether to enforce Letters Rogatory does not function as an appellate court in respect of the foreign requesting court and will give deference to the conclusions of that court, the domestic court must independently reach its own conclusions based on the evidence proffered to determine whether the request complies with the law of the domestic courtAker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897 at para. 26; Connecticut Retirement Plans & Trust Funds v. Buchan, 2007 ONCA 462 at para. 13; Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 at para. 32 (C.A.); Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (H.C.J.), aff’d (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 at para. 18 (C.A.).
In this last regard, the criteria for the enforcement of letter of request from a foreign jurisdiction are: (1) the evidence is relevant; (2) the evidence is necessary and will be adduced at trial or for a pre-trial hearing:
Azcar v. Royal Bank of Canada, 2018 ONSC 4048 at para. 30; Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 63, if admissible; (3) the evidence is not otherwise obtainable; (4) the order sought is not contrary to public policy; (5) the documents sought are identified with reasonable specificity; and (6) the order sought is not unduly burdensome, bearing in mind what the witnesses will be required to do, and produce, were the action to be tried: Intelsat USA Sales LLC v. Hyde, 2015 ONSC 5680; Aker Biomarine AS v. KGK Synergize Inc., 2013 ONSC 4897; Lafarge Canada Inc. v. Khan (2008), 2008 CanLII 6869 (ON SC), 89 O.R. (3d) 619 (S.C.J.); Connecticut Retirement Plans & Trust Funds v. Buchan, 2007 ONCA 462; MAN Aktiengesellschaft v. Valentini (2006), 2006 CanLII 23922 (ON SC), 81 O.R. (3d) 680 (S.C.J.); Presbyterian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822 (C.A.); Borelli v. Tam, [2006] O.J. No. 3714 (S.C.J.); Presbyterian Church of Sudan v. Tallisman Energy Inc., 2005 ABQB 920; Safety-Kleen Corp. v. Kroeze, [2003] O.J. No. 4718 (S.C.J.); OptiMight Communications, Inc. v. Innovance, Inc., 2002 CanLII 41417 (ON CA), [2002] O.J. No. 577 (C.A.); King v. KPMG, [2003] O.J. No. 2881 (S.C.J.); Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (H.C.J.), aff’d (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 (C.A.); Re Friction Division Products Inc. v. E. I. Du Pont de Nemours & Co. (No. 2) (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722 (H.C.J.).
These factors are guideposts, not pre-conditions to the enforcement of a letter of request: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at paras. 56-71; Disabatino v. National Gallery of Canada, 2016 ONSC 4656. The factor of the evidence being not otherwise available means that evidence of the same value cannot be obtained other than from the person to be examined: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 64; McFadden Lyon Rouse LLC v. Lookin, 2012 ONSC 2243.
The unwillingness of a witness to testify voluntarily in a foreign proceeding may be taken into account in determining that the evidence would not otherwise be obtainable: Ontario Public Service Employees Union Pension Trust Fund (Trustees of) v. Clark (2005), 2005 CanLII 51027 (ON SC), 77 O.R. (3d) 38 (S.C.J.), affd 2006 CanLII 20839 (ON CA), [2006] O.J. No. 2475 (C.A.).
The public policy test component of responding to a letter of request requires that the court consider whether the request imposes any limitation or infringement on Canadian sovereignty including an assessment of whether granting the request would give extra-territorial authority to foreign laws that violate relevant Canadian laws, would infringe on recognized Canadian moral or legal principles, or would impose an undue burden on or do prejudice to the individual whose evidence is requested: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264 at para. 58; Treat America Ltd. v. Nestle Canada Inc., 2011 ONCA 560 at para. 12; France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705 at para. 37 (C.A.).
In addition to its role with respect to the enforcement of letters of request, the public policy defence is a factor in determining whether a domestic court should apply foreign law and whether a domestic court should enforce a foreign judgment. In all these contexts, in deference to the foreign court, what is contrary to the public policy of the domestic court is viewed narrowly. As a matter of public policy, where foreign law is applicable, Canadian courts will generally apply the foreign law even if its results are harsher or contrary to domestic law unless the foreign law is not consonant with the domestic system of justice and its fundamental values, which rarely has been established: Beals v. Saldanha, 2003 SCC 72 (CanLII), [2003] 3 S.C.R. 416 at paras. 71-77; Society of Lloyd’s v. Meinzer (2001), 2001 CanLII 8586 (ON CA), 55 O.R. (3d) 688 (C.A.), leave to appeal to the S.C.C. ref’d; United States of America v. Levy, [2002] O.J. No. 2298 (S.C.J.); United States of America v. Ivey (1995), 1995 CanLII 7241 (ON SC), 26 O.R. (3d) 533 (Gen. Div.); Boardwalk Regency Corp. v. Maalouf (1992), 1992 CanLII 7528 (ON CA), 6 O.R. (3d) 737 (C.A.); Sigurdson v. Farrow (1981), 1981 CanLII 1062 (AB QB), 15 Alta. L.R. (2d) 180 (Q.B.); Block Bros. Realty Ltd. v. Mollard and Detra Holdings Ltd. (1981), 1981 CalII 504 (BC CA), 27 B.C.L.R. 17 (C.A.); Canadian Acceptance Corp. Ltd. v. Matte (1957), 1957 CanLII 155 (SK CA), 9 D.L.R. (2d) 304 (Sask. C.A.); National Surety Co. v. Larsen, 1929 CanLII 265 (BC CA), [1929] 4 D.L.R. 918 (B.C.C.A.).
For the foreign law judgment or order not to be applied or enforced, the foreign law must be contrary to the most basic and fundamental values of the domestic jurisdiction. If foreign law is to be refused effect on public policy grounds, the foreign law must violate some fundamental principle of justice, be repugnant to public or moral interests, or some deep-rooted tradition of the domestic jurisdiction: Society of Lloyd’s v. Meinzer (2001), 2001 CanLII 8586 (ON CA), 55 O.R. (3d) 688 (C.A.), leave to appeal to the S.C.C. ref’d; United States of America v. Ivey (1995), 1995 CanLII 7241 (ON SC), 26 O.R. (3d) 533 (Gen. Div.). The public policy defence is narrow and it is directed at the concept of repugnant laws and not repugnant facts: Beals v. Saldanha, 2003 SCC 72 (CanLII), [2003] 3 S.C.R. 416 at para. 71; Stern Estate v. Solehdin, [2010] O.J. No. 863 at para. 47.”