[authors: Sandra Corbett and Ryan Krushelnitzky]
The nature of complex litigation is such that it often does not remain confined within one jurisdiction. Complex matters often cross jurisdictional and even international boundaries. Cross-border issues can arise when proceedings take place in one jurisdiction, yet witnesses, parties and records may be located in another.
For example, a party involved in a complex dispute may want to obtain the testimony and records of a witness located outside of the local jurisdiction hearing the dispute. While the local court does not have the authority to compel a party outside of its jurisdiction to comply with its orders, it does have the option of requesting assistance from the foreign court that does have that authority. Canadian courts are often willing to provide judicial assistance to foreign courts with respect to discovery and document production requests.
The superior trial court of the Canadian province of Alberta—the Court of Queen’s Bench— recently dealt with an application dealing with the request of an American court for international judicial assistance, in Richardson v. Shell Canada Ltd., 2012 ABQB 170. This case, written by the Chief Justice of the Court of Queen’s Bench, Wittmann C.J., provides an excellent summary of the state of the law pertaining to the enforcement of letters of request (letters rogatory) within Alberta.
In Richardson, the United States District Court for the District of Kansas sent a letter of request for international judicial assistance to the Alberta Court. The American Court asked the Alberta Court to direct and order a party to produce a corporate representative to answer oral questions.
Wittmann C.J. explained that an Alberta court will consider six factors when it assesses the proper response to a letter of request from a foreign court:
1. Whether the evidence sought is relevant;
2. Whether the evidence sought is necessary for a trial or for discovery;
3. Whether the evidence is otherwise available through some other source;
4. Whether any documents requested have been identified with reasonable precision;
5. Whether there is any public policy reason to refuse the request; and,
6. Whether the request would place an undue burden on a proposed witness or witnesses, having regard to the nature of the testimony requested.
The question of relevancy will be examined “through the lens” of what an Alberta court would consider relevant, with the potential for refinement based on the foreign definition of relevancy. Evidence is relevant and material in Alberta if the information can reasonably be expected to significantly help determine one or more of the issues raised in the pleadings, or can help ascertain other evidence which could do so.
If a foreign letter of request is not specific enough, or is too broad and burdensome, the Alberta Court will modify it on its own motion. Wittmann C.J. observed that the Alberta Court “is not reluctant to narrow the scope” of a letter of request, “nor is it inclined to require a revised [letter of request] before it considers the merits of what is being requested”.
Litigants considering the use of a letter of request should contact counsel in the Canadian jurisdiction for early assistance. The more closely the letter of request complies with the Canadian rules of procedure concerning letters of request, the higher the probability of success of that request.
In sum, options exist to enable litigants involved in cross-border disputes to obtain discovery or document production from Canadian jurisdictions. When doing so, assistance from counsel in those Canadian jurisdictions should be sought so as to ensure that the letter of request issuing from the local court will meet the factors that the Canadian court will require prior to enforcing the request.
Contact Sandra Corbett at Field Law at scorbett@fieldlaw.com or 780 643 8755 for American requests for Canadian judicial assistance.
