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Evidence - International Letters of Request (Letters Rogatory). Skymark Properties Corporation, Inc. v. 63263101 Canada Inc. (First Line Canadian Investment Group)
In Skymark Properties Corporation, Inc. v. 63263101 Canada Inc. (First Line Canadian Investment Group) (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal of an application court ruling that 'gave effect' to a Letter Rogatory issued by a US court that compelled a party to "be made available as a witness to testify concerning the contents of the declaration and related matters", and to produce various financial records and other documents for use in the U.S. proceeding:[3] The appellants essentially repeat the arguments that were rejected by the application judge. They submit that in granting the application, the application judge erred in two ways: 1) he admitted inadmissible hearsay evidence in support of the application; and 2) he failed to scrutinize the application in accordance with the oft-cited factors set out in Friction Division Products Inc v. E.I. du Pont deNemours & Co. (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722 (H.C.J.), at paras. 25 and 30 (“the Friction factors”)[1].
[4] We are not persuaded that the application judge made any reversible error.
[5] First, the application judge made no error in relying on evidence of what the appellants are alleged to have said for the purpose of determining the first two Friction factors, namely, whether the evidence sought from the appellants is relevant and necessary for trial, and will be adduced at trial, if admissible. The application judge quite rightly distinguished between relying on what the appellants are alleged to have said, as opposed to the truth of what they are alleged to have said, noting that the latter issue will be determined at trial if, as the second Friction factor notes, the evidence is admissible. The application judge was entitled to use this evidence in his consideration of the Friction factors.
[6] Second, the application judge made specific reference to and applied the Friction factors, as well as the broader governing principles that he was required to examine, in considering whether to grant the application in accordance with s. 60(1) of the Ontario Evidence Act, R.S.O. 1990, c. E.23. His reasons, read as a whole, demonstrate that he considered the relevant principles and made the necessary findings that support his conclusions. He followed the recommended analytical framework in R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at para. 18, stepped back, and balanced Canadian sovereignty considerations with the justice of the enforcement request.
[7] The appellants submit that the evidence sought is otherwise obtainable because the appellants are parties to the U.S. proceeding and have already been deposed there, making the application judge’s order duplicative. They say that the application judge erred by relying on a “bald statement” by the respondents’ U.S. attorney that a U.S. court cannot compel the appellants, as Canadian residents, to attend or produce documents in the U.S. proceeding. Finally, they argue that the respondents failed to meet their onus by providing evidence that the documents ordered to be produced by the appellants are not otherwise obtainable.
[8] We do not agree with the appellants’ submissions.
[9] First, unless to do so would be contrary to the interests of justice or would infringe Canadian sovereignty, this court is required to pay deference to the U.S. court that concluded, after a hearing, that the appellants’ evidence and documentation is necessary to ensure justice is done in the U.S. proceeding: Zingre, at p. 401; Ontario Service Employees Union Pension Trust Fund v. Clark (2006), 2006 CanLII 20839 (ON CA), 270 D.L.R. (4th) 429 (Ont. C.A.), at para. 22. Presumably, if the U.S. court had concluded that the respondents could obtain the documentation through further legal process in Michigan, it would not have ordered the remedy of a Letter Rogatory. There is no evidence on the record that the appellants’ documents are available from other sources without the appellants’ consent or court order, or that the documents have been produced to-date by others in the U.S. proceeding.
[10] The fact that the appellants are now parties to the U.S. proceedings and have been deposed there does not undermine the U.S. court’s finding.
[11] Notwithstanding the Letter Rogatory requires the examination of Mr. Behrouz, it also requires the production of documents and is therefore not duplicative. Sean W. Walsh, the appellants’ U.S. attorney, deposed in his November 7, 2021 affidavit on this application that “an order that Mr. Behrouz produce documents and/or be examined in Ontario is likely to duplicate steps which will already have occurred in [the U.S. proceeding].” However, although Mr. Behrouz, for himself and the corporate appellant, was subsequently deposed in the U.S. proceeding on November 9, 2021, he did not agree during his examination that the appellants would comply with the Letter Rogatory and produce documents. There is no evidence on the record that the appellants have to-date produced any documents.
[12] Further, the statements by the respondents’ U.S. attorney are not controversial. There is no dispute that Canadian residents are not compellable witnesses in U.S. proceedings, nor does a U.S. court have the jurisdiction to compel Canadian individuals or corporations to produce documents for use in U.S. proceedings: Perlmutter v. Smith, 2020 ONCA 570, at para. 36; Actava TV, Inc. v. Matvil Corp., 2021 ONCA 105, at para. 39.
[13] In any event, as this court instructed in Connecticut Retirement Plans and Trust Funds v. Buchan, 2007 ONCA 462, at para. 19, the criterion of evidence being otherwise unavailable ought to be interpreted as meaning “that evidence of the same value as that sought from the person to be examined cannot otherwise be obtained”, and, importantly, “where fraud is alleged, both confirmation of other information and credibility will be important issues”.
[14] Accordingly, the application judge made no error in concluding that the evidence sought in the Letter Rogatory is not otherwise available. . Adler v. Deloitte Touche Tohamtsu
In Adler v. Deloitte Touche Tohamtsu (Ont CA, 2022) the Court of Appeal sets out usefully some basics of the law of letters rogatory, requests from an Ontario court to a court in another jurisdiction seeking production of that foreign court's documents:[11] A letter rogatory is a request from a judge to the judiciary of a foreign country for the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country's sovereignty. In this case, the request is for production of documents from corporations in Canada.
[12] The decision to grant or refuse a foreign request is a matter of judicial discretion, entitled to deference on appeal: Presbytarian Church of Sudan v. Rybiak, 2006 CanLII 32746 (ON CA), [2006] 275 D.L.R. (4th) 512 (Ont. C.A.), at para. 19. According to this court’s decision in Perlmutter v. Smith, 2020 ONCA 570, 152 O.R. (3d) 185, at para. 31, the appropriate standard of review for the grant of letters rogatory is palpable and overriding error.
[13] The authority to enforce letters rogatory is set out in the Canada Evidence Act, R.S.C. 1995, c. C-5, at s. 46(1), as well as in the Evidence Act, R.S.O. 1990, c. E.23, at s. 60(1). The requirements are:a) a foreign court, desirous of obtaining testimony in relation to a pending civil, commercial or criminal matter, has authorized the obtaining of evidence;
b) the party from whom the evidence is sought is within the jurisdiction of Ontario;
c) the evidence sought from the Ontario party is in relation to a pending proceeding before the foreign court or tribunal; and
d) the foreign court or tribunal is a court or tribunal of competent jurisdiction. [14] In Perlmutter, this court addressed six factors which must be considered when deciding whether to enforce letters rogatory:. Is the evidence sought relevant?
. Is the evidence sought necessary for trial and will it be adduced at trial if admissible?
. Is the evidence sought not otherwise obtainable?
. Is the order sought contrary to public policy?
. Are the documents sought identified with reasonable specificity?
. Is the order sought not unduly burdensome, having in mind what the relevant witnesses would be required to do and produce if the action was tried here? [15] This court also addressed the enforcement of letters rogatory in Actava. In that case, at para. 42, three elements relevant to the enforcement of letters rogatory were identified: (1) comity, (2) public policy of the jurisdiction to which the request is directed, and (3) the absence of prejudice to the sovereignty of the citizens of that jurisdiction. Canadian courts have refused to order testimony for use in foreign proceedings in various situations, including:. where a request for production of documents was vague in general;
. where discovery was sought against a non-party to a litigation in violation of local laws of civil procedure; and
. where the main purpose of the examination was to serve as a “fishing expedition”. . Actava TV, Inc. v. Matvil Corp.
In Actava TV, Inc. v. Matvil Corp. (Ont CA, 2021) the Court of Appeal conducts an extensive review of evidentiary letters rogatory, here between the US and Canada [paras 39-68, 78-79,89-96].
. Glegg v. Glass
In Glegg v. Glass (Ont CA, 2020) the Court of Appeal considers several points in the law of international letters of request (seeking the assistance of an Ontario court in evidence-gathering):[33] .... Second, in considering whether to enforce letters of request, a judge must determine “whether the request imposes any limitation or infringement on Canadian sovereignty and whether justice requires an order for the taking of commission evidence”: Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264, 115 O.R. (3d) 161, at para. 59. ....
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The applicable legal principles
[48] Before considering the parties’ submissions, a brief summary is in order of the principles regarding the scope of the public policy factor used in the analysis to determine whether to enforce letters of request.
[49] Foreign letters of request are to be given full force and effect by domestic courts unless they are contrary to public policy or otherwise prejudicial to the sovereignty or the citizens of the jurisdiction to which the request is directed: Gulf Oil Corporation v. Gulf Canada Ltd. et al., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39; R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at p. 401; Presbyterian Church of Sudan v. Taylor (2006), 2006 CanLII 32746 (ON CA), 275 D.L.R. (4th) 512 (Ont. C.A.), at para. 17. In considering a request to enforce, a court must balance the possible infringement of Canadian sovereignty with whether justice requires an order for the taking of commission evidence, in view of the “natural desire” to assist foreign courts: Zingre, at p. 403. As put in Lantheus, at para. 59, quoting France (Republic) v. De Havilland Aircraft of Canada Ltd. (1991), 1991 CanLII 7180 (ON CA), 3 O.R. (3d) 705 (C.A.), at para. 37, the test requires that the court:[C]onsider whether the request imposes any limitation or infringement on Canadian sovereignty, and whether justice requires an order for the taking of commission evidence. The considerations encompassed by the phrase “Canadian sovereignty” … include an assessment of whether the request would give extra-territorial authority to foreign laws which violate relevant Canadian or provincial laws …; whether granting the request would infringe on recognized Canadian moral or legal principles …; and whether the request would impose an undue burden on, or do prejudice to, the individual whose evidence is requested. [50] In conducting this balancing exercise, a court considers whether the evidence, including the letters of request, establishes the six non-exhaustive factors set out in Re Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. et al. (No. 2) (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722 (H.C.), at p. 732, and Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (Gen. Div.), at p. 194, aff’d (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 (C.A.).[4] These factors operate as “useful guideposts”, not rigid pre-conditions, to the exercise of a judge’s discretion: Lantheus, at paras. 61 and 69; Perlmutter v. Smith, 2020 ONCA 570, 152 O.R. (3d) 185, at para. 25.
[51] One of the factors is whether enforcing the letters of request would be contrary to public policy: Treat America Ltd. v. Nestlé Canada Inc., 2011 ONCA 560, 340 D.L.R. (4th) 707, at para. 12. In considering this factor, the court focuses on whether it would be contrary to the public interest to require the production of the evidence or documents sought. In Re Westinghouse Electric Corporation and Duquesne Light Co. (1977), 1977 CanLII 1315 (ON SC), 16 O.R. (2d) 273 (H.C.), the letters of request sought the production of documents that were subject to federal regulations prohibiting their disclosure. The court declined to enforce the letter of request. One factor militating against enforcement was the Government of Canada’s policy that the information and documents sought should not be disclosed. The court concluded that, in exercising its discretionary power to enforce letters of request, it should take judicial cognizance of the stated public policy and not force the disclosure of information if to do so would, on the authority of the Government, be harmful to the public interest: p. 290. The decision in Westinghouse Electric was cited with approval by the Supreme Court of Canada in Gulf Oil, at pp. 56-58.[5]
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[56] The decision to grant or refuse a foreign request is a matter of judicial discretion to which this court must give deference in the absence of a demonstrated error in principle by the court below, which would include a misapprehension of or failure to take into account the evidence, or a clearly wrong or unreasonable result: Presbyterian Church, at paras. 19 and 30; Perlmutter, at para. 26; Young v. Tyco International of Canada Ltd., 2008 ONCA 709, 92 O.R. (3d) 161, at para. 27. I see no such error.
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[70] The application judge also dismissed the application on the basis that it would be contrary to public policy to enforce the Letters of Request in aid of a cause of action forbidden in Ontario. As the application judge pointed out, in Frame v. Smith, the Supreme Court of Canada refused to recognize a cause of action by a parent against a former spouse and others for interference with access to their children. The application judge determined that the appellant was using Florida law to advance a claim that Ontario law does not recognize. Drawing on case law concerning the recognition and enforcement of foreign judgments, the application judge concluded that the Letters of Request were based on a foreign law that “is simply too offensive to local notions of what is just and reasonable,” so they should not be enforced: at para. 132.
[71] The appellant submits that in so finding the application judge misapplied the public policy factor applicable to letters of request, which focuses on whether the disclosure of the information sought would offend public policy, not on the underlying foreign litigation.
[72] The appellant correctly states the governing jurisprudence. In Presbyterian Church, at para. 23, this court cited the decisions in Zingre and Westinghouse Electric for the principle that the public policy analysis must focus on the request, not on the underlying foreign litigation. . Perlmutter v. Smith
In Perlmutter v. Smith (Ont CA, 2020) the Court of Appeal considers the rarely-used international 'letters of request' [Evidence Act s.60 (Ontario); Canada Evidence Act s.46] where a foreign court requests evidentiary assistance of a local Ontario court:V. THE GOVERNING PRINCIPLES
[21] The grounds of appeal Mr. Smith advances must be assessed in light of the general principles applicable when an Ontario court considers a request for assistance from a foreign tribunal pursuant to s. 60 of the Evidence Act, R.S.O. 1990, c. E.23[1] or s. 46 of the Canada Evidence Act, R.S.C. 1985, c. C-5. As the application judge correctly noted, at para. 4: “The fundamental principle to be applied in considering such a request is recognition of the comity of nations: that one sovereign nation voluntarily adopts or enforces the laws of another out of deference, mutuality, and respect.” As a result, a foreign request is to be given full force and effect unless it is contrary to the public policy or otherwise prejudicial to the sovereignty or the citizens of the jurisdiction to which the request is directed: Gulf Oil Corporation v. Gulf Canada Ltd. et al., 1980 CanLII 192 (SCC), [1980] 2 S.C.R. 39; R. v. Zingre, 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at p. 401, quoted in Presbyterian Church of Sudan v. Taylor, (2006), 2006 CanLII 32746 (ON CA), 275 D.L.R. (4th) 512 (Ont. C.A.), at para. 17.
[22] The application judge was guided by the test repeated by this court in Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd., 2013 ONCA 264, 115 O.R. (3d) 161, at para. 59, which requires a court to:consider whether the request imposes any limitation or infringement on Canadian sovereignty and whether justice requires an order for the taking of commission evidence. The considerations encompassed by the phrase “Canadian sovereignty” … include [an] assessment of whether the request would give extra-territorial authority to foreign laws which violate relevant Canadian or provincial laws …; whether granting the request would infringe on recognized Canadian moral or legal principles …; and whether the request would impose an undue burden on, or do prejudice to, the individual whose evidence is requested. [23] The application judge properly observed, at para. 33, that international comity dictates a liberal approach to requests for judicial assistance. As a result:[T]he judge making the request is entitled to considerable deference in the Canadian application and … the court receiving the request for assistance does not sit in appeal from the decision of the requesting court. The Ontario Court of Appeal has held that orders originating from the United States should be given full faith and credit unless to do so would be contrary to the interests of justice or infringe on Canadian sovereignty. [24] At para. 36, the application judge correctly stated that to balance the need for comity against the possible infringement of Canadian sovereignty he was required to consider the factors set out in Re Friction Division Products, Inc. and E.I. Du Pont de Nemours & Co. Inc. et al. (No. 2) (1986), 1986 CanLII 2827 (ON SC), 56 O.R. (2d) 722 (H.C.), at p. 732, and Fecht v. Deloitte & Touche (1996), 1996 CanLII 11782 (ON SC), 28 O.R. (3d) 188 (Gen. Div.), at p. 194, aff’d (1997) 1997 CanLII 1799 (ON CA), 32 O.R. (3d) 417 (C.A.), namely:Before an order giving effect to letters rogatory will be made, the evidence (including the letters rogatory) must establish that:
(1) the evidence sought is relevant;
(2) the evidence sought is necessary for trial and will be adduced at trial, if admissible;
(3) the evidence is not otherwise obtainable;
(4) the order sought is not contrary to public policy;
(5) the documents sought are identified with reasonable specificity;
(6) the order sought is not unduly burdensome, having in mind what the relevant witnesses would be required to do, and produce, were the action to be tried here. [25] The Friction Division factors act as “useful guideposts”, not rigid pre-conditions, to the exercise of a judge’s discretion: Lantheus, at paras. 61 and 69. Of course, an Ontario court must decline a foreign court’s request if enforcing it would be contrary to public policy or inconsistent with the laws of this province: Treat America Ltd. V. Nestlé Canada Inc., 2011 ONCA 560, 340 D.L.R. (4th) 707, at para. 12.
[26] The decision to grant or refuse a foreign request is a matter of judicial discretion, to which this court must give deference in the absence of a demonstrated error in principle by the court below: Presbyterian Church, at paras. 19 and 30.
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