For The Defense, December 2011 - DRI Today

ThInk gLObaLLy
10 Tips
Obtaining Evidence Successfully in
Canada to Use in a Foreign Proceeding
By Richard McCluskey and Lisa Parliament
With an increasing number of cross- border transac- the interests of justice. To the extent possible, a letter of
tions occurring in today’s marketplace, evidence rele- request should make it clear that justice cannot be served
vant to a dispute in one jurisdiction can be located on the between the parties without the Canadian evidence. It
other side of a border. When relevant documents or wit- should also explicitly state that the requester needs the
nesses find themselves within Canada, foreign litigants evidence for pending rather than anticipated litigation.
will need to initiate the two-step process for obtaining 3. Identify the evidence sought with reasonable
evidence abroad through a mechanism known as a “let- specificity. A Canadian court may not enforce a letter
of request.” First, a party seeking to compel Canadian ter of request if the information seeker does not clearly
evidence must bring an interlocutory motion or applica- identify the information. Canadian courts have consistion
before the court in which the litigation is pending to tently refused requests that amount to fishing expedi-
have that court issue a letter of request. Second, the party tions. However, Canadian courts may enforce overbroad
must bring an application before a court in the Cana- requests in part, and they may enforce more restricted
dian jurisdiction where the evidence is located seeking forms of requests outlined in the letters. To increase the
an order enforcing the letter of request.
odds that you will achieve successful enforcement, a let-
While Canadian courts have discretion regarding ter should list the documents sought by class or cate-
enforcing letters of request, they are usually inclined to gory, at a minimum.
show deference to a foreign court’s request in the inter- 4. Explain why the evidence is not otherwise
ests of promoting comity. That said, Canadian courts obtainable. If the information sought is available in the
have also made it clear that when they have applica- foreign jurisdiction, by which here we mean someplace
tions for orders enforcing letter of requests before them, other than Canada, the Canadian court probably won’t
they will not rubber- stamp them, and Canadian courts enforce a letter of request. Similarly, a requesting party
should not enforce letters of request routinely.
should first attempt to obtain the documents voluntarily.
Below we offer 10 practical tips for foreign litigants And Canadian courts will require more than bare asser-
to make obtaining evidence in Canada as smooth a protions that evidence is otherwise unavailable.
cess as possible.
5. Ensure that a request does not contravene
1. Establish with sufficient detail that the evi- Canadian public policy. Courts will not enforce letdence
sought is relevant. Canadian courts will only ters that are manifestly unjust or immoral. A Canadian
enforce letters of request when the evidence sought is court asked to enforce a letter of request will also weigh
obviously relevant to the foreign litigation. Canadian whether the evidence is necessary against the proposed
courts interpret relevance narrowly, and potential rel- order’s impact on Canadian sovereignty. Courts are speevance
is insufficient. A Canadian court will consider cifically loath to enforce requests that amount to extra-
whether the requested evidence is squarely related to the territorial applications of foreign policy objectives.
allegations set out in the foreign pleadings.
6. Ensure that a request is not unduly burden-
2. Demonstrate that the evidence is necessary for some. Take steps to minimize inconveniencing the per-
pretrial discovery purposes or for a trial. A Canadian son or entity from which you seek evidence. A Canadian
court will consider whether the evidence is necessary to court will evaluate the burden placed on a non-party witness
and compare it with the probative value of the evi-
■ Richard McCluskey is an associate in the Litigation and Dispute Resolution dence. The more onerous the request, the less likely a
Group at McMillan LLP in Toronto. He maintains a broad civil and commercial lit- court would grant it.
igation practice and is developing expertise in cross- border litigation. Lisa Par- 7. Consider whether you are making a documenliament
is a partner in McMillan’s Litigation and Dispute Resolution Group, with tary request or a request to examine a witness. In
expertise in product liability and class action defense. She regularly advises lead- general, a Canadian court will consider the same factors
ing companies on multi- jurisdictional coordination and cross- border issues, risk whether enforcing a documentary request or a request to
assessment and management, and litigation management. Think Globally