“A letter rogatory is a request from a judge to the judiciary of a foreign country for the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country’s sovereignty. In this case, the request is for production of documents from corporations in Canada.
The decision to grant or refuse a foreign request is a matter of judicial discretion, entitled to deference on appeal: Presbytarian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] 275 D.L.R. (4th) 512 (Ont. C.A.), at para. 19. According to this court’s decision in Perlmutter v. Smith, 2020 ONCA 570, 152 O.R. (3d) 185, at para. 31, the appropriate standard of review for the grant of letters rogatory is palpable and overriding error.
The authority to enforce letters rogatory is set out in the Canada Evidence Act, R.S.C. 1995, c. C-5, at s. 46(1), as well as in the Evidence Act, R.S.O. 1990, c. E.23, at s. 60(1). The requirements are:
a) a foreign court, desirous of obtaining testimony in relation to a pending civil, commercial or criminal matter, has authorized the obtaining of evidence;
b) the party from whom the evidence is sought is within the jurisdiction of Ontario;
c) the evidence sought from the Ontario party is in relation to a pending proceeding before the foreign court or tribunal; and
d) the foreign court or tribunal is a court or tribunal of competent jurisdiction.
In Perlmutter, this court addressed six factors which must be considered when deciding whether to enforce letters rogatory:
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- Is the evidence sought relevant?
- Is the evidence sought necessary for trial and will it be adduced at trial if admissible?
- Is the evidence sought not otherwise obtainable?
- Is the order sought contrary to public policy?
- Are the documents sought identified with reasonable specificity?
- Is the order sought not unduly burdensome, having in mind what the relevant witnesses would be required to do and produce if the action was tried here?
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This court also addressed the enforcement of letters rogatory in Actava. In that case, at para. 42, three elements relevant to the enforcement of letters rogatory were identified: (1) comity, (2) public policy of the jurisdiction to which the request is directed, and (3) the absence of prejudice to the sovereignty of the citizens of that jurisdiction. Canadian courts have refused to order testimony for use in foreign proceedings in various situations, including:
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- where a request for production of documents was vague in general;
- where discovery was sought against a non-party to a litigation in violation of local laws of civil procedure; and
- where the main purpose of the examination was to serve as a “fishing expedition”.”
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Adler v. Deloitte Touche Tohamtsu, 2022 ONCA 855 (CanLII) at 11-15