Strategic Advocacy for Cross Border Claims – Toronto Cross Border Litigation and International Arbitration Lawyers

Enforcing Letters of Request for Judicial Assistance
Enforcement of Letters Rogatory in Ontario

Obtaining in Ontario Evidence from Non-Party for US Lawsuit
Commission Evidence in Ontario Canada | International Judicial Assistance

In many litigation matters, it may be necessary to obtain evidence and testimony from non-parties residing outside of the jurisdiction where the litigation is taking place.

For litigation being carried on outside of Ontario, Letters Rogatory can be sought to have the foreign court request that the Ontario courts order an Ontario resident to provide relevant documents and/or testimony for the purposes of the foreign litigation. That request is then brought to the Ontario courts by way of application.

Enforcing Letters of Request or Letters Rogatory

Though granting such requests is not routine, Ontario courts will consider such requests on the principle of comity – that is, that the US  or foreign court would reciprocate if and when the Ontario court requests documents and testimony from a resident of their jurisdiction.

In deciding whether to grant such a request, the court will look at a number of factors, including whether the:

  1. documents and testimony sought are relevant to the foreign proceeding;
  2. documents and testimony sought are necessary for the foreign proceeding;
  3. party seeking the documents and testimony could obtain the same evidence through other means;
  4. order would be contrary to Canadian public policy;
  5. documents requested are reasonably specified, so as not to be a “fishing expedition”; and
  6. request is unduly burdensome on the Ontario resident.

International Experience

Gilbertson Davis LLP has lawyers with experience in enforcing Letters Rogatory and orders for Commission Evidence in Ontario courts, and we work closely with our clients and their local counsel to assist and advise in the preparation of Letters Rogatory, to seek to enforce those Letters Rogatory in court, and to assist our clients and their local counsel in effecting the discovery process in compliance with both local and foreign rules of civil procedure. We work to provide our clients with robust and results-oriented representation to assist them in obtaining the evidence they require to efficiently litigate their matters in the forum where the dispute is being litigated.

We have strength and experience in advising foreign clients involved in litigation or arbitration in Ontario and across its borders.

Our lawyers are often consulted by those located in the United States, and in the past have been consulted by or retained in litigation by those (or matters located) in the various U.S. states, including Alaska, California, Washington, Nebraska, Illinois, Missouri, Ohio, New York, New Jersey, Rhode Island, Massachusetts, North Carolina, Tennessee, Georgia, Louisiana, Florida and Texas.

Internationally, our senior commercial litigation and arbitration counsel has also been involved in litigation or arbitration with clients (or matters) located in the Netherlands, Norway, Sweden, England, Denmark, Italy, Switzerland, Germany, Greece, Cyprus, Malta, Monaco, Guyana, Liberia, South Africa, Angola, The Bahamas, Bermuda, British Virgin Islands, Dominican Republic, Dubai, United Arab Emirates, Iran, Kuwait, India, Bangladesh, South Korea, Hong Kong, PRC and Australia.

Our senior commercial litigation and arbitration counsel has have been admitted and practised law in foreign jurisdictions (including England, Bermuda and New York), have both foreign and local legal education, including in the U.S. and U.K.

International Contact

Some of our lawyers have been admitted and practiced law in foreign jurisdictions, have both foreign and local legal education, and a number of our lawyers and law clerks speak languages including French, Japanese, Portuguese, Italian, Russian and Cantonese.

If you or your client require obtaining evidence from non-parties residing in Ontario, please contact us for an initial consultation.