Your American Subpoena Ain’t No Good ‘Round Here

American law firms and lawyers often serve subpoenas on Canadians as non-parties to the U.S. civil litigation. When they do so, they presume that the subpoena is valid and enforceable in Canada.

Well, it’s not.

The only means of compelling a Canadian non-party to participate in U.S. depositions or produce documents in respect of foreign court proceedings is by the issuance of letters rogatory (letter of request) by the foreign issuing court, which then must be recognized and enforced by a Canadian court. The same applies for a Canadian court to compel a foreign non-party to attend an examination for discovery (as a non-party) or trial in Canada, including Quebec.

There are no bilateral agreements for extra-judicial cooperation between Canada and the United States, and Canada is not yet a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (18 March, 1970). Therefore, if an American plaintiff wishes to examine a foreign witness (who is not a named defendant in the action), they must obtain a Letter of Request (Letters Rogatory) issued by the foreign court and then retain counsel in the province where the non-party resides to apply to the Canadian court to give effect to the Letter of Request (Letters Rogatory). See also, Pam Pengelley, entitled “A Compelling Situation: Enforcing American Letters Rogatory in Ontario” (2006), 85 Can. Bar. Rev. 345, which provides a good overview of the key principles and recent caselaw; and Presbyterian Church of Sudan v. Rybiak(2006) 215 O.A.C. 140, 33 C.P.C. (6th) 27, 275 D.L.R. (4th) 512, 2006 CarswellOnt 5781 (Ont. C.A.) which is one of the leading Canadian authorities for the judicial test to determine whether a request for international judicial assistance via letters rogatory should be given effect.

See also my previous posts:

Even if the Canadian court recognizes the foreign letters rogatory, there are a number of Canadian provinces that have enacted blocking statutes relating to business records. For example, the Ontario Business Records Protection Act [“BRPA”] [1] was the first of among many blocking statutes enacted specifically to thwart United States discovery. The BRPA was enacted after the District Court in the Southern District of New York District Court ordered the Canadian subsidiaries of a New York corporation to produce  documents located in Canada in a grand jury antitrust investigation. [2]  In Hunt v T & N plc,[3] the Supreme Court of Canada held the Quebec Business Concerns Records Act (the Quebec equivalent to the Ontario BRPA) did not meet the constitutional standards of “order and fairness”.  Where a court order is sought under the Quebec BCRA, a judicial order in another province would be denied effect with no discretion given. The province could not avoid the constitutional mandate by such a pre-emptive strike. The whole purpose of blocking statutes is to impede successful litigation in other jurisdictions by refusing compliance with orders issued there. While this is part of sovereign right, it runs counter to comity. The rules of private international law must be adapted to the Canadian federation’s structure. The Court held that the presence of such blocking statutes is anachronistic where their application harms interprovincial litigation. Therefore, the Supreme Court of Canada held that the Quebec BCRA is “constitutionally inapplicable in other provinces”.

However, the Hunt v. T & N plc decision is distinguishable as a case dealing with “full faith and credit” between two sister provinces (i.e. inter- provincial jurisdictions) but the principles of comity do not extend as far in international or transnational litigation, particularly since constitutional issues are irrelevant and the BRPA has neither been struck down nor repealed. In respect of blocking statutes, Stephen G.A. Pitel and Nicholas S. Rafferty, in their authoritative Conflict of Laws text refer to the Supreme Court of Canada decision in Hunt v. T&N plc, noting:

“The court therefore held that as a matter of constitutional law the Quebec provision could not have the intended effect on litigation in another province. It was held inapplicable to litigation in other provinces, although it remained effective for litigation in foreign countries.” [emphasis added] [4]

It is noteworthy that Ontario residents and corporations may be subject to contempt proceedings, punishable by up to one year imprisonment for voluntarily disclosing or transmitting any business records forming party of the US discovery requests. Section 2 of the BRPA provides:

Undertaking and recognizance

2.  (1)  Where the Attorney General or any person having an interest in a business as mentioned in section 1 has reason to believe that a requirement, order, direction or summons as mentioned in section 1 has been or is likely to be made, issued or given in relation to such business, the Attorney General or that person, as the case may be, may apply to the Superior Court of Justice for an order requiring any person, whether or not that person is named in the requirement, order, direction or subpoena, to furnish an undertaking and recognizance for the purpose of ensuring that the person will not contravene section 1 and the court may make such order as the court considers proper. R.S.O. 1990, c. B.19, s. 2 (1); 2006, c. 19, Sched. C, s. 1 (1).

Contempt of court

(2)  Every person who, having received notice of an application under this section, contravenes this Act shall be deemed to be in contempt of court and is liable to one year’s imprisonment. R.S.O. 1990, c. B.19, s. 2 (2)

Idem

(3)  Every person required to furnish an undertaking or recognizance who contravenes this Act is in contempt of court and in addition to any penalty provided by the recognizance is liable to one year’s imprisonment. R.S.O. 1990, c. B.19, s. 2 (3).


[1] Business Records Protection Act, R.S.O., 1990, c.B-19 (as am)

[2] See, In re Grand Jury Subpoenas Duces Tecum Addressed to Can. Int’l Paper Co., 72 F.Supp. 1013 (S.D.N.Y. 1947).

[3] Hunt v T & N plc, [1993] 4 S.C.R. 289 (S.C.C.)

[4] Stephen G.A. Pitel and Nicholas S. Rafferty, Conflict of Laws (Toronto: Irwin Law Inc., 2010) at pp. 40-43.

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