The Sedona Canada Commentary on Enforcing Letters Rogatory Issued By an American Court in Canada: Best Practices & Key Points to Consider

  • The Sedona Canada Commentary on Enforcing Letters Rogatory Issued By an American Court in Canada: Best Practices & Key Points
    June 2011

    Due to the very close economic and cultural ties between Canada and the U.S., it is quite common for legal disputes that occur in the American court system to spill over into Canada. It many cases, the evidence is provided on consent, however, where the witness in Canada will not, or is not in a position to, provide the evidence voluntarily, the litigants must look to courts in Canada for assistance. Assistance from a Canadian court is required because an American court or procedural law has no jurisdiction or application in Canada. The mechanism used to request assistance from courts in Canada is through the issuance of letters rogatory, also referred to as letters of request. In this commentary, the focus is on the U.S. and Canada, however, it should be noted that the process in Canada would be the same regardless of the location of the foreign court.

    While the Canadian and American legal systems are similar, there are significant differences in procedural and substantive laws. These differences often cause confusion and misunderstanding for all involved when evidence located in Canada is sought by American counsel. This commentary is intended to provide judges and lawyers with some key points and best practices to consider with respect to the enforcement of letters rogatory in Canada. It may be a useful primer for American counsel who often are troubled by the fact that they cannot readily obtain evidence from a Canadian resident even after a formal request has been ordered by the American court. Further, American judges and counsel may review the commentary to gain an understanding of what a Canadian court will consider in the analysis of whether to grant a request.
    This commentary begins with recommended best practices and issues to be considered by the parties, and then reviews the key differences in the legal systems regarding discovery, providing an overview of the applicable Canadian legal principles and legal test that will be considered by a Canadian court.