Recent Treatment Of Letters Of Request From U.S. Courts By The Ontario Court Of Appeal

• Published date: 06 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gardiner Roberts LLP
• Author: Mr Stephen Thiele and James Cook

As a result of the highly integrated economies and efficient cross-border movement between Canada and the United States (at least prior to the 2020 pandemic), the courts in each country frequently seek each other's assistance to gather evidence for use in local proceedings. The process by which a foreign court seeks the assistance of an Ontario court involves bringing an application to enforce Letters of Request, also known as "Requests for International Judicial Assistance," or more simply "Letters Rogatory." The Court of Appeal has made it clear that an Ontario court should "'give full faith and credit' to the orders and judgments of a U.S. court unless it is of the view that to do so would be contrary to the interests of justice or would infringe Canadian sovereignty": Ontario Service Employees Union Pension Trust Fund v. Clark, 2006 CanLII 20839 (ON CA) at para. 22, Zingre v. R., 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392 and France (Republic) v. De Havilland Aircraft of Canada (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705 (C.A.) .

Two recent decisions of the Court of Appeal illustrate the considerations that will guide a court to accept or refuse to issue an Order giving effect to Letters of Request. In one case, the Letters of Request was enforced. In the other case, the Letters of Request was denied.

Perlmutter v. Smith

In Perlmutter v. Smith, 2020 ONCA 570 (CanLII), the Ontario Court of Appeal affirmed the decision of Justice Thomas Lederer giving effect to two Letters of Request issued by a Judge in a Florida Court at the instance of the Respondents, Harold Peerenboom, Isaac Perlmutter, and Laura Perlmutter, in a proceeding commenced by Mr. Peerenboom in Florida against the Perlmutters. The Letters of Request sought evidence from an Ontario resident, David Smith, in relation to his involvement in events being litigated in the Florida Court.

Mr. Peerenboom and the Perlmutters owned homes in a private community in Florida. In 2011 they became embroiled in a dispute over the management of the community, particularly concerning the operation of its tennis centre. Over a prolonged period of time thereafter, Mr. Peerenboom was subjected to a hate mail campaign that involved hundreds of anonymous hate letters falsely accusing him of loathsome crimes, including murder and sexual assault against a minor, which were mailed throughout the United States and Canada to his family, friends, neighbours, business associates, employees and clients.

In 2013, Mr. Peerenboom commenced an action in Florida against the Perlmutters alleging that they were orchestrating the hate-mail campaign. The Perlmutters subsequently commenced their own counterclaim against Mr. Peerenboom and others for attempting to defame the Perlmutters by falsely implicating them in the hate-mail campaign.

In January 2016, the Detroit office of the Department of Homeland Security intercepted a package which contained anonymous letters in which the sender threatened to send letters about Mr. Peerenboom to prisoners in various jails if the Peerenbooms did not leave their home on Palm Beach. The letters also challenged two executives of an executive search firm founded by Mr. Peerenboom to convince him to sell his Florida home, failing which clients of the firm would be advised of what a horrible person Mr. Peerenboom was.

The sending of the...