Letters Rogatory | Letters of Request | Request for International Judicial Assistance | Commission Evidence 

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and ArbitratorCross-Border Litigation, Letters Rogatory0 Comments

Free Initial Consultation for US Attorneys 

Canada is not a party to the Inter-American Convention on Letters Rogatory.

Accordingly, we are frequently consulted by US attorneys on behalf of parties to US litigation, and retained to advise upon and obtain enforcement in the courts in Ontario Canada of US court issued Letters Rogatory,  Letters of Request or Request for International Judicial Assistance.

These sometimes pertain only to the production of documents and other times require the examination in Ontario, Canada of a non-party to the US litigation, or both. We advise on the likely range of costs involved in intended enforcement proceedings. Early retention allows us to advise whether the intended Letters Rogatory,  Letters of Request or Request for International Judicial Assistance would likely be enforced by the court in Ontario, Canada.

Discovery Deadlines in US Proceedings 

We are mindful that US attorneys are often working with discovery deadlines within which to complete all examination (deposition) and document production.

Once retained, we can proceed efficiently to seek to obtain the necessary order of the court in Ontario enforcing the Letters Rogatory,  Letters of Request or Request for International Judicial Assistance.  The proceedings in the Ontario court are by Application and commenced by Notice of Application. If the respondent non-party witness or non-party possessing documents consents to the application, the order can be obtained promptly. If the respondent opposes the application, then the application must be supported by affidavit evidence.

The Ontario Test for Enforcement of Letters Rogatory,  Letters of Request or Request for International Judicial Assistance

Comity of Nations – Mutual Deference and Respect

The basic principle of international judicial assistance was described by a decision of the Supreme Court of Canada, in the reasons of Dickson J. speaking for the court in R. v Zinge 1981 CanLII 32 (SCC) [1981] 2 S.C.R. 392
“It is upon this comity of nations that international legal assistance rests. Thus the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation but out of mutual deference and respect. A foreign request is given full force and effect unless it be contrary to the public policy of the jurisdiction to which the request is directed (see Gulf Oil Corporation v. Gulf Canada Ltd. et al.1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39) or otherwise prejudicial to the sovereignty or the citizens of the latter jurisdiction.”

Criteria for Enforcing a Foreign Request  

The test employed by the courts in considering whether to order enforcement of a request for judicial assistance was articulated by the Ontario Court of Appeal in Presbytarian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA)

To grant the order sought giving effect to letters rogatory, the court of first instance must be satisfied by the applicants that the criteria for enforcing a foreign request are met. The evidence (including the letters rogatory) must establish that:

(1)  the evidence sought is relevant;
(2)  the evidence sought is necessary for trial and will be adduced at trial, 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, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here.

International Experience | Local Counsel

Why Gilbertson Davis LLP – Experience

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

We 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 Alaska, California, Washington, Nebraska, Illinois, Missouri, Ohio, New York, New Jersey, Rhode Island, Massachusetts, North Carolina, Tennessee, Georgia, Louisiana, Florida and Texas.

Internationally, we have 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.

Why Gilbertson Davis LLP – Lawyers
One of our lawyers has been admitted and practiced law in foreign jurisdictions (England, Bermuda and New York), has both foreign and local legal education, including in the U.K.

Free Initial Consultation for US Attorneys

How to Obtain Free Initial Consultation 
Please contact our Intake Coordinator:
Intake Coordinator 416 979 2020, ext 223, or info@gilbertsondavis.com

If there is no conflict, our Intake Coordinator will offer a free initial consultation with one of our lawyers practicing in this area to US Attorneys regarding enforcement of in the courts in Ontario, Canada US Letters Rogatory,  Letters of Request or Request for International Judicial Assistance

Early Advice Encouraged
We encourage US attorneys to make an early request for an initial consultation and retention before US Letters Rogatory,  Letters of Request or Request for International Judicial Assistance are issued, so that we may consider the intended order and Letters Rogatory,  Letters of Request or Request for International Judicial Assistance sought in the US proceedings

Please contact Gilbertson Davis LLP for a free initial consultation.

Brief informational summaries about insurance litigation, commercial litigation and family law litigation matters in the courts of Ontario and Canada are periodically published on our website. Please note that our website content is for informational purposes only, and should not be construed or relied upon to provide legal advice. If you require legal advice, please request an initial consultation with Gilbertson Davis LLP using the Request Consultation Form on this webpage or by contacting our Intake Coordinator on (416) 979-2020, ext. 223 (both subject to the Terms of Use described on our Contact page).

About the Author
David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and Arbitrator

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and Arbitrator

David Alderson, LL.B, LL.M (Commercial and Corporate), Q.Arb, Lawyer and Arbitrator David has practiced over 35 years as a commercial and business litigator in diverse matters in the courts and in domestic and international arbitration proceedings in Ontario, England & Wales, Bermuda and Dubai. Also admitted in New York. The ADR Institute of Canada has accredited David as a Qualified Arbitrator (Q.Arb). He accepts appointment as a commercial, business, condo and marine arbitrator. Bio | Lawyer | Arbitrator | Contact

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