Compelling Witnesses to Appear in Ontario Courts

The only means of compelling an Ontario defendant to attend examinations for discovery or trial in Ontario in respect of foreign court proceedings is by the issuance of the letters rogatory (letter of request) by the foreign issuing court, which then must be recognized and enforced by an Ontario court. The same applies for an Ontario court to compel a foreign non-party to attend an examination for discovery (as a non-party) or trial in Ontario.

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 a Canadian 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 Ontario to apply to the Ontario 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 the leading Ontario authority for the judicial test to determine whether a request for international judicial assistance via letters rogatory should be given effect.

With respect to business records, the “Business Records Protection Act“ [“Ontario BRPA”] was the first of 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: see, In re Grand Jury Subpoenas Duces Tecum Addressed to Can. Int’l Paper Co., 72 F.Supp. 1013 (S.D.N.Y. 1947).

There are two cases which have applied the Ontario BRPA:

The first is a Quebec Court of Appeal case, 2632-7502 Québec Inc. c. Pizza Pizza Canada Inc. 1993 CarswellQue 285, 7 Q.A.C. 313, [1993] R.D.J. 568, 103 D.L.R. (4th) 45, J.E. 93-1305 (Que. C.A.) [“Pizza Pizza Canada”]. Although the Pizza Pizza Canada case supports the argument that provincial blocking legislation prohibits disclosure or removal of business records outside of the province based upon the principles of comity; this case is no longer good law (at least inter-provincially), since it relied upon the British Columbia Court of Appeal decision in Hunt v. T & N plc (1991), 3 B.C.A.C. 138, 7 W.A.C. 138; 81 D.L.R.(4th) 763 (C.A.), which was later reversed on appeal by the Supreme Court of Canada: Hunt v T & N plc, 109 D.L.R. (4th) 16, [1994] 1 W.W.R. 129, [1993] 4 S.C.R. 289, 37 B.C.A.C. 161, 85 B.C.L.R. (2d) 1, 161 N.R. 81, 1993 CarswellBC 294, 1993 CarswellBC 1271, 21 C.P.C. (3d) 269, 60 W.A.C. 161, [1994] B.C.W.L.D. 110, J.E. 93-1890, 4 W.D.C.P. (2d) 603, [1993] S.C.J. No. 125, EYB 1993-68597 (S.C.C. Nov 18, 1993). [“Hunt v. T & N plc”] 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 preemptive 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, it is arguable that the Hunt v. T & N plc case may be distinguished 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.

The second is the Ontario decision in Local Court of Stuttgart of the Federal Republic of Germany v. Canadian Imperial Bank of Commerce 1997 CarswellOnt 102 (sub nom. Germany (Federal Republic) v. Canadian Imperial Bank of Commerce), 31 O.R. (3d) 684, (sub nom. Germany (Federal Republic) v. Canadian Imperial Bank of Commerce) 23 O.T.C. 364 (Ont. Gen. Div.); aff’d 1998 WL 1719090 (Ont. C.A.), 1998 CarswellOnt 1999 (Ont. C.A.) [“Germany (Federal Republic) v. CIBC”]. In Germany (Federal Republic) v. CIBC, the Local Court of Stuttgart, Federal Republic of Germany made application for letters of request for judicial assistance, to require the attendance for examination and production of documents of the accused, Rudolf Kretz, who was alleged to have engaged in a fraudulent scheme in Germany which caused considerable losses to German investors. Lax, J. granted the application. The trial judge found that there was a pending criminal matter before a German court which met the requirement of s. 46 of the Canada Evidence Act (CEA). Justice Lax also found that the German court was a court of competent jurisdiction within the meaning of s. 46 of the CEA. Without the order, the German court would not have had evidence of either the respondent or key documents. The Germany (Federal Republic) v. CIBC case is clearly distinguishable as a case dealing with extra-judicial assistance involving a foreign criminal extradition matter.

It is advisable to consult with and retain a qualified lawyer in your local jurisdiction specializing in international litigation to provide you with sound legal advice for your particular situation.

Antonin I. Pribetic

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