Cross-Border Litigation Issues: Uncooperative Canadian Witnesses (Letters Rogatory) and Shareholder Disputes – How to maximize litigation cost effectiveness when the company, or uncooperative witness, is in Canada

CLE presented on October 16, 2013 by Michelle T. Maniago, Borden Ladner Gervais LLP, Vancouver, BC

Summary prepared by Kristin Alma Whinfrey, WSBA IPS Student Liaison, 2013-14

 

For American lawyers, formal and informal requests may not be sufficient to persuade a witness resident in Canada to provide evidence for use at trial. When faced with such an uncooperative Canadian resident witness, American lawyers may seek issuance of a Letters Rogatory from an American court and seek to have it enforced by a Canadian court to obtain this evidence. A Letters Rogatory does not result in an American-style deposition, but, rather, it results in evidence for use at trial. The procedure and law related to Letters Rogatory stems from this critical difference. Letters Rogatory may be enforced in Canada by agreement with the witness or by a Canadian Court (after application).

Whether a Canadian court will grant the examination request depends largely on the scope of the request and the record submitted to the Canadian court. When determining whether to grant the motion, the Canadian court will consider, among other things, (a) whether the evidence sought is relevant to the foreign lawsuit, under the Canadian relevance standard (material facts); (b) whether the evidence is necessary to the resolution of the lawsuit; (c) whether there are other means of obtaining this evidence; (d) whether this evidence will be used at trial; (e) whether enforcing the Letters Rogatory would be contrary to public policy; (f) whether any request for documents is reasonably specific; and (g) whether complying with the Letters Rogatory would be unduly burdensome for the Canadian resident.

If granted, the American lawyer may question the witness subject to any conditions contained in the Letters Rogatory and imposed by the Canadian court, such as on scope and procedure. Preferred procedures, such as whether the testimony is video recorded or whether an arbiter is present, must be included in the original Letters Rogatory.

American counsel are well advised to consult with Canadian counsel prior to the issuance of the Letters Rogatory from the American court, so to ensure that considerations relevant to the enforcement in Canada are met. Canadian counsel can also advise on the potential costs and pitfalls that may be associated with enforcement, and can provide American counsel with cost- and time-saving tips in structuring and obtaining the Letters Rogatory.

 

Please visit HERE for the more detailed article.

 

The preceding summary discusses certain key points discussed during the CLE presentation, all of which are outlined in greater detail in the accompanying written materials. This summary is a publication of the WSBA International Practice Section, and is posted with the approval of the speaker and the WSBA International Practice Section executive committee. It is designed to inform members of the WSBA International Practice Section of recent legal developments, and may not be used to claim CLE credit. This summary is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations. If you have specific questions about this topic, please feel free to contact Ms. Maniago at 604.640.4139 or MManiago@blg.com.

 

For the original announcement of this CLE, please visit HERE.