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Litigation: Civil litigation in Canada and the United States – Part 6

How to obtain evidence in Canada for use in the United States.

Unlike the United States, Canada is not a party to multilateral treaties (e.g., the Hague Convention of 1970) regarding obtaining evidence for use in foreign civil litigation proceedings. But Canada also does not have prohibitions or restrictions on foreign non-governmental litigants obtaining evidence (documentary or oral) which is located in Canada and which is provided voluntarily. For example, the deposition of witnesses located in Canada, and who are willing to give evidence voluntarily for use in U.S. litigation, takes place both frequently and as a matter of routine. The consent of the Canadian government is required only if the testimony is in respect of a U.S. state or federal government investigation.

In addition, even when evidence located in Canada will not be provided voluntarily to a U.S. litigant, Canadian courts will generally assist parties seeking to obtain such evidence (both documentary and oral) for use in civil litigation in the United States. Canadian federal and provincial statutes and rules of civil procedure address the means by which letters rogatory (or “letters of request”), to the appropriate Canadian court, may be used to compel a witness to testify, or to produce documents, in aid of foreign civil litigation. Typically, such legislation and rules provide that a Canadian court may respond to the letters rogatory request and order an oral examination of a witness, or the production of documents, as if a Canadian summons to witness had been issued.

The usual requirements for a Canadian court to accept American letters rogatory include:

(1) The letters constitute a formal request from a court in the United States which has the statutory or other power to direct the taking of evidence abroad;

(2) The letters are to the appropriate Canadian court; 

(3) The witness in issue resides within the jurisdiction of the Canadian court;

(4) The evidence sought is relevant, necessary for trial and will be adduced at trial, if admissible;

(5)        the evidence sought cannot be otherwise obtained;

(6) The witness(es)’ compliance with the order sought will not be unduly burdensome (having regard to what the witness(es) would be obliged to do in a Canadian litigation proceeding) and will not oblige the witness(es) to commit an offence;

(7) Any documents sought are sufficiently identified.  A vague request to produce “all documents” relating to the litigation will normally be too broad; and

(8) The order sought is not contrary to public policy or the Canadian court’s own rules of civil procedure (including, for example, that the witness(es) will not be subjected to questioning other than would be permitted under those rules).

Given the above, the involvement of Canadian counsel is normally essential and, ideally, they should be consulted well prior to the issuance of the letters rogatory. 

Finally, the process of having a Canadian court order issued in response to U.S. letters rogatory can take weeks, or even months (especially if the granting of the order sought is strenuously  opposed by the proposed witness), and accordingly U.S. litigants would be well advised to consider, at an early stage in their proceedings, whether relevant evidence is located in Canada and, if so, how to best obtain the evidence.

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Berkley Sells

Berkley Sells is a partner at Fasken Martineau. He practices civil litigation with a focus on corporate/commercial disputes and internet litigation.

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