Compelling Discovery From Canadian Witnesses

• Published date: 14 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Civil Law
• Law Firm: Cassels
• Author: Mr Mark Davis, Eric Mayzel and Alexander De Pompa

Foreign subpoenas or orders for discovery are not automatically enforceable in Canada. Accordingly, if a person in Canada does not voluntarily give evidence in a foreign proceeding, it may be necessary to use judicial procedures to compel that evidence.

"Letters rogatory," also known as "letters of request," are a formal request by a foreign court to a local court requesting that the local court perform a specified act, such as compelling testimony from a witness located within the local court's jurisdiction for use in a proceeding in the foreign court. In Canada, a foreign request will usually be granted unless it is contrary to public policy or is prejudicial to the sovereignty or the citizens of Canada.¹

A party seeking an order from a Canadian court to enforce letters rogatory must bring a proceeding in the superior court of the province in which the witness resides. The Federal Court of Canada has no jurisdiction to enforce letters rogatory.²

In Quebec, Canada's only civil law province, the enforcement of letters rogatory generally follows the same principles as the common law provinces set out below.

STATUTORY PRECONDITIONS TO ENFORCE LETTERS ROGATORY

The enforcement of letters rogatory is governed by both federal and provincial legislation. For example, in Ontario, the enforcement regime is governed by the Canada Evidence Act, RSC, 1985, c. C-5 and the Evidence Act (Ontario), RSO 1990 c. E.23. Each common law province has similar legislation. It is common practice for a party bringing an application to enforce letters rogatory to rely on both the Canada Evidence Act and the corresponding provincial statute.

In Ontario, there are four statutory pre-conditions that must be satisfied before the Ontario Superior Court of Justice may exercise its discretion to enforce a letter of request:

• It must appear that a foreign court is desirous of obtaining the evidence (Canada Evidence Act, section 46) or that the obtaining of the evidence has been duly authorized by commission order, or other process of the foreign court (Ontario Evidence Act, section 60(1));
• The witness whose evidence is sought must be within the jurisdiction of the court which is asked to make the order;
• The evidence sought must be in relation to a civil, commercial or criminal matter pending before the foreign court (Canada Evidence Act, section 45) or in relation to an action, suit or proceeding pending before the foreign court (Ontario Evidence Act, section 60(1)); and
• The foreign...