More On

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.

author image

Berkley Sells

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

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.