When a foreign litigant (most commonly from the United States) requires evidence from a witness located in Ontario, they must utilize the letters rogatory process. Under section 46 of the Canada Evidence Act and section 60 of the Ontario Evidence Act, the Ontario Superior Court of Justice has the jurisdiction to give effect to foreign letters of request.
However, Ontario courts will not simply rubber-stamp a US discovery order. The request must pass the stringent 'six-factor test'. Canadian counsel must carefully review the foreign request and often advise their US counterparts to narrow its scope before filing the Notice of Application.
For a complete guide to filing the Application Record, tendering conduct money, and arranging the examination, use our Enforcement of Foreign Letters Rogatory matter plan.
The Six-Factor Test
The enforcement of letters rogatory is discretionary. The leading jurisprudence outlines six criteria that the applicant must satisfy:
1. Relevance: The evidence sought must be directly relevant to the core issues in the foreign proceeding. Fishing expeditions are strictly prohibited.
2. Necessity: The evidence must be necessary for the foreign court to do justice between the parties. It cannot merely be 'helpful'.
3. Not Otherwise Obtainable: The applicant must demonstrate that the evidence cannot be obtained in their own jurisdiction or from the parties already before the foreign court. If the documents could be compelled from a US defendant, an Ontario court will not compel an Ontario non-party to produce them.
4. Public Policy: The order must not violate Canadian public policy. This often arises where the request infringes on Canadian privacy laws, solicitor-client privilege, or seeks to bypass domestic blocking statutes.
5. Reasonable Specificity: This is the most common reason US requests fail. Broad, sweeping discovery demands ("any and all documents relating to X") are standard in US federal courts but violate Ontario's rules against pre-trial discovery of non-parties. Documents must be specifically identified.
6. Undue Burden: The request must not impose an unreasonable burden (financial or operational) on the Ontario witness.
Strategic Considerations for the Applicant
The most critical trap for the applicant is filing in the wrong court. While the Canada Evidence Act is federal legislation, the Federal Court of Canada does NOT have jurisdiction to enforce letters rogatory. The application must be brought in the Superior Court of the province where the witness resides.
Additionally, the witness must be served with the Notice of Application and, crucially, tendered conduct money. Failure to provide conduct money renders the service defective and the application will be dismissed.
Defending the Ontario Witness
When acting for the Ontario witness, the strategy focuses on challenging the six factors, particularly 'reasonable specificity' and 'undue burden'. Often, the most pragmatic approach is not to outright oppose the letters rogatory, but to negotiate a narrowed, focused Order that limits the scope of production and the duration of the examination.
For the specific procedural steps involved in opposing or limiting a request, refer to our Witness Opposing Letters Rogatory fork.
Using the Matter Plan
Cross-border evidence gathering requires strict compliance with both foreign and domestic procedural rules. By following the Letters Rogatory Applicant workflow, Canadian counsel can ensure the foreign request is properly vetted and enforced without delay. If instructed by the witness, the Witness Defence workflow provides the tactical steps to protect their commercial and privacy interests from overbroad US discovery.