The recent decision of Madam Justice Pollack of the Ontario Superior Court of Justice in Lantheus Medical Imaging, Inc. v Atomic Energy of Canada Limited (Court File No. CV-11-427161: 27 July 2011) [pdf] involved a successful opposition to an application for enforcement in Canada of a foreign letter of request (letters rogatory) against a Canadian Crown corporation. Lantheus Medical Imaging, Inc. (“Lantheus”) applied for an order giving effect to Letters Rogatory issued by the United States District Court for the Southern District of New York City (“U.S. Court”) compelling the production of certain documents and the attendance at an examination under oath of Atomic Energy of Canada Limited (“AECL”) for use in an insurance coverage action pending before the U.S. court. The court notes,
Pollack J. dismissed the application on the basis that the respondent, AECL, as a Crown agency, may be entitled to state immunity under the U.S. Federal Sovereign Immunity Act (“FSIA”) before the foreign court, but that Lantheus did not expressly disclose the issue to the U.S. court and the U.S. court had failed to consider it. Pollack J. observes,
The application was dismissed without prejudice for Lantheus to reapply following the U.S. court’s determination on the FSIA issue.
For more information on letters of request (letters rogatory) see my previous post: Ontario court declines to enforce New Jersey court’s letters rogatory. For an overview of state immunity, see my previous post: UPDATED: Only Time Will Tell: Canadian and American approaches to State Immunity.
(Don Jack, Bonnie Roberts Jones and Kara Smith of Heenan Blaikie LLP/SRL appeared for AECL; Brett Harrison and Richard McCluskey appeared for Lantheus; R. Richler appeared for Zurich American Insurance and Dale Yurka appeared for the Department of Justice )