Ontario court declines to enforce U.S. letters rogatory involving Canadian Crown agency

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 )


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5 Responses to “Ontario court declines to enforce U.S. letters rogatory involving Canadian Crown agency”

  1. Ted Folkman Says:

    With due respect to the Ontario court, it seems to me that the court got the US law analysis wrong. The letter rogatory is not an exercise of jurisdiction over the AECL that could potentially be barred by the FSIA–it is a request to the Ontario court asking the Ontario court, as a matter of comity, to exercise jurisdiction over the AECL.

    In a case where an agency or instrumentality of a foreign state is actually sued in a US court, how does the plaintiff serve process on the defendant? In some cases, by letter rogatory (see 28 U.S.C. 1608(b)(3)(A)). And yet in those cases, the defendant still can assert immunity from suit under the FSIA. To confuse the court’s power to issue a letter rogatory with the ultimate question of immunity from suit would be a mistake in such a case, and a fortiori, a mistake in this case, where the agency of the foreign state is not even a party.

    I won’t opine on the court’s interpretation of its own evidence statute, but I wonder, Antonin, whether you think the court was right to read the language about “court of competent jurisdiction” to refer to jurisdiction to issue the letter rogatory, rather than jurisdiction to decide the dispute before it.

  2. Antonin I. Pribetic Says:

    Thanks for your comment, Ted. The substance of your comment on US law mirrors Lantheus’s position. But, with respect, I think you may have misconstrued the Ontario court’s decision – it didn’t make any finding on US law. Indeed, this is precisely the point – Madam Justice Pollack was explicit that the US court should make that finding.  As I read the Ontario court’s decision, if the Ontarlo court were to ignore or otherwise find that the FSIA was irrelevant, then it would effectively be making a finding on US law, since the US court never had a chance to consider whether or not the FSIA mattered in the first instance.

    With respect to the “court of competent jurisdiction” analysis, among the factors an Ontario court considers is whether granting the letters rogatory request would be contrary to public policy or otherwise prejudicial to the sovereignty or the citizens of Canada: R. v. Zingre, 1981 CanLII 32 (S.C.C.), [1981] 2 S.C.R. 392. While a US court may be a “court of competent jurisdiction”, it’s personal jurisdiction over a Canadian defendant, particularly, a Crown agency that is protected by state immunity, is a crucial factor that the US court must decide in the first instance. Service of process and discovery requests are not considered on the same footing here.
    ‪‬

  3. Ted Folkman Says:

    Thanks, Antonin–I appreciate your view on the Canadian statute. On the US issue, you’re right, of course, that the judge didn’t actually decide the US law issue but instead invited the parties to obtain a ruling from the SDNY. I guess my point is that the Canadian judge wrongly saw an issue where there really is none–I think the applicability, or rather the non-applicability, of the FSIA is clear on the face of the statute, once one realizes what a letter rogatory is. The judge’s comments on the US court’s lack of subpoena power suggest to me that she wasn’t on the right track. But it’s easy to be a Monday-morning quarterback, isn’t it?

  4. Case of the Day: Lantheus Medical Imaging, Inc. v. Atomic Energy of Canada Ltd. « Letters Blogatory Says:

    [...] to Antonin Pribetic for a pointer to the case of the day, Lantheus Med. Imaging, Inc. v. Atomic Energy of Canada Ltd. [...]

  5. Case of the Day: Lantheus Medical Imaging, Inc. v. Atomic Energy of Canada Ltd. | Letters Blogatory Says:

    [...] to Antonin Pribetic for a pointer to the case of the day, Lantheus Med. Imaging, Inc. v. Atomic Energy of Canada Ltd. [...]

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