From time to time, litigants in jurisdictions outside British Columbia discover that a key witness or some important documents are located in British Columbia – outside the jurisdictional reach of the court in which they are litigating. Occasionally, the witness may agree to co-operate or provide documents voluntarily, but more often than not, the litigants will have to obtain a court order in British Columbia in order to obtain the evidence for use in the foreign litigation.
While model legislation in each Canadian province provides a mechanism for the interprovincial service of subpoenas, when dealing with American cases the typical procedure involves the use of a letter of request, also known as ‘letters rogatory’. The process seems simple enough on its face – the party seeking the evidence makes an application to the court where the lawsuit was filed to issue a letter of request to the Supreme Court of British Columbia, seeking that court’s assistance to obtain evidence in British Columbia for use in the originating jurisdiction. Once the letter is issued, a petition is then brought in British Columbia for an order enforcing the letter of request, thereby compelling the production of the evidence sought.
Though the process appears simple on its face, there can be traps for the unwary. While in recent years, there has been a strong tendency to emphasize principles of judicial comity (showing deference to the decisions of foreign courts and recognizing the need for inter-jurisdictional co-operation), it is not wise to assume that the British Columbia courts will simply rubber-stamp the order made by the foreign court. There are some significant procedural differences between Canadian and American courts, and it is therefore important to ensure that letters of request are carefully crafted and that the evidence in support of the letter of request will satisfy the applicable tests for enforcement of such orders in British Columbia.
In British Columbia, the court will generally be guided by the following principles in deciding whether to enforce a letter of request:
- Has the evidence sought been described with reasonable specificity?
- Is the information relevant to the litigation?
- Is the evidence necessary for use at trial (as opposed to being sought for purpose of discovery)?
- Is the evidence not otherwise obtainable or compellable by the requesting court’s processes?
- Would the request impose an undue burden on, or do prejudice to, the individual whose evidence is requested, particularly having regard to what the witness would be required to do or produce if the action was tried in British Columbia?
Again, it is important that the party seeking enforcement in British Columbia have affidavit evidence before the Supreme Court in respect of each of these points. The British Columbia courts will likely not simply accept at face value assertions on these matters in the letter of request since the American court may have issued the letters rogatory in a perfunctory manner, depending on the procedures in each jurisdiction.
The British Columbia court will also want to be satisfied that the scope of the request is as narrow as possible to reduce the potential burden on the non-party, so any documents sought should be set out with as much specificity as possible.
It is also important to consider whether differences in procedural and substantive law between Canada and the United States may impact on the request – for example, Canadian privacy laws may apply to the evidence sought, or the evidence may be subject to claims of privilege. The implied undertaking of confidentiality, which protects all documents produced in litigation from further use or disclosure outside the litigation, does not exist in the United States. Accordingly, it may be necessary to build in specific protections into the order enforcing the letters of request to protect the Canadian resident in a manner that is more closely in line with Canadian law.
Letters of request can be a powerful and useful tool for foreign litigants. While in many jurisdictions the process for obtaining such letters may be perfunctory, litigants should always bear in mind that the court in British Columbia will not simply enforce such letters as a matter of course, and must ensure that the letter of request and the evidence supporting the petition for enforcement will satisfy the British Columbia court that it is in the interest of justice (and inter-jurisdictional co-operation) to grant the request.