Cross-Border Class Actions: The Ontario Court Of Appeal Affirms The Ability Of U.S. Class Plaintiffs To Compel Evidence From A Canadian Executive On Canadian Soil

On November 28, 2012, the Ontario Court of Appeal released its decision in Treat America Limited v. Leonidas 2012 ONCA 748 which broadly affirmed the ability of U.S. class action plaintiffs to obtain the assistance of the Canadian courts in compelling testimony from Canadian witnesses in support of a U.S. class proceeding. In short, in a cross-border class action for price-fixing, the Ontario Court of Appeal upheld an order that required a former CEO of a Canadian company to attend at a U.S. deposition on Canadian soil, in spite of the fact that the former CEO remained subject to criminal investigation in Canada. In so doing, the Court rejected the former CEO's constitutional challenge, and concluded that the deposition would not infringe his right against self-incrimination under the Canadian Charter of Rights and Freedoms. The Court's ruling reflects an increasing willingness by U.S. class plaintiffs to gather evidence in Canada in cross-border cases, even in cases where the targets remain subject to criminal or regulatory investigation in Canada.

The proceedings in Treat America arise from an ongoing criminal and regulatory investigation into potential price-fixing activity in Canada by the Commissioner of Competition and the Public Prosecution Service of Canada. Shortly following the execution of certain search warrants in 2007, class plaintiffs in Canada and the U.S. launched dozens of parallel class actions against a number of defendant manufacturers as well as a number of individuals. In order to collect evidence from a key witness in Canada, the U.S. class plaintiffs sought and obtained a letter of request from the supervising judge in the consolidated U.S. class proceeding that was pending before a U.S. federal court in Pennsylvania.

By way of background, where a U.S. litigant wishes to obtain evidence from a non-party Canadian resident for use in a U.S. proceeding, he or she is generally required to bring a motion for a letter of request (or letter rogatory) from a U.S. judge, and then move to have that request enforced as against the Canadian resident by bringing an application before a court in Canada. Under existing law, a Canadian court is not obliged to grant the request. Rather, Canadian courts have the discretion to grant or deny such requests, provided that: (i) the evidence is relevant, necessary for trial and cannot otherwise be obtained, (ii) the order enforcing the request would not be contrary to public policy and is...