A. Introduction: Assistance in Obtaining Evidence in Canada
1. Legislative and Treaty Context
In Canada, a number of federal, provincial, and territorial statutes
allow for judicial assistance in obtaining evidence for use in proceedings
outside Canada.1 Canada is not party to the Hague Evidence Convention,2
to which the United States is a party. Thus, that Convention is not available
to U.S. litigants seeking to obtain evidence in Canada. Canada and the
United States are parties to an Agreement Regarding the Application of
Their Competition and Deceptive Marketing Practices Laws, entered into
on August 1, 1995,3 the purpose of which is to promote cooperation and
coordination between American and Canadian competition authorities.
1. The following is a list of the federal, provincial, and territorial statutes:
FederalCanada Evidence Act, R.S.C. 1985, c. C-5, Part II, §§ 43-51;
AlbertaAlberta Evidence Act, R.S.A. 2000, c. A-18, § 56; British
ColumbiaEvidence Act, R.S.B.C., c. 124, § 53; ManitobaEvidence Act,
C.C.S.M., c. E150, § 82; New BrunswickEvidence Act, S.N.B., c. E-11,
§§ 30-32; Northwest TerritoriesEvidence Act, R.S.N.W.T. 1988, c. E-8,
§ 72; Nova ScotiaEvidence Act, R.S.N.S. 1989, c. 154, §§ 70-73;
OntarioEvidence Act, R.S.O. 1990, c. E.23, § 60; QuebecSpecial
Procedure Act, R.S.Q., c. P-27, §§ 9-20; SaskatchewanSaskatchewan
Evidence Act, S.S. 2006, chapter E-11.2 § 65; YukonEvidence Act, R.S.Y.
2002, c. 78, § 65; and NunavutEvidence Act, R.S.N.W.T.(Nu) 1988, c. E-
8, § 72. Two provinces (Prince Edward Island, Newfoundland and
Labrador) have no laws authorizing such assistance. There is no need to
resort to statutory procedures if the witness is prepared to testify and/or
produce documents voluntarily. Subject to the discussion of blocking
statutes below, this is not a violation of Canadian law or sovereignty.
2. Convention on the Taking of Evidence Abroad in Civil and Commercial
Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted
in 8 I.L.M. 37 (1969).
3. 1995 Can. T.S. No. 15. The Agreement replaced an earlier instrument,
entitled “Memorandum of Understanding as to Notification, Consultation
Obtaining Discovery Abroad
2. General Principles
Although Canadian courts have not been uniformly liberal in
responding to requests for assistance from abroad, the current trend of
judicial authority is clearly in favor of responding positively to requests
for judicial assistance. Generally, Canadian courts have demonstrated a
willingness to apply their process to assist parties to civil litigation in
foreign tribunals to obtain evidence “out of respect for the comity of
nations and deference to decisions of foreign courts,”4 provided that the
request for assistance meets certain reasonably well-defined criteria. “In
addition, the court is required to balance two broad considerations in
deciding whether to exercise its discretion to enforce the Letter Rogatory.
Those considerations are the impact on Canadian sovereignty and whether
justice requires the taking of commission evidence.”5
The criteria that a request for assistance must meet can be summarized
as follows: (1) the request must come from a court or tribunal of
“competent jurisdiction;” 6 (2) there must be “mutuality of purpose”
and Cooperation with Respect to the Application of National Antitrust
Laws,” which was entered into between Canada and the United States in
March 1984. Canada and the United States are also parties to a Treaty on
Mutual Legal Assistance in Criminal Matters, which applies to criminal
antitrust proceedings and provides for cooperation in investigation,
prosecution, and suppression of offenses. 1990 Can. T.S. No. 19,
implemented by the Mutual Legal Assistance in Criminal Matters Act,
R.S.C. 1985, c. 30 (4th Supp.).
4. Zingre v. Queen, [1981] 2 S.C.R. 392, 401 (Can.) (“It is upon this comity
of nations that international legal assistance rests. . . . A foreign request is
given full force and effect unless it be contrary to the public policy of the
jurisdiction to which the request is directed . . . or otherwise prejudicial to
the sovereignty or the citizens of the latter jurisdiction.”) See also Maverick
LNG Holdings v. Teekay Shipping (Canada) Ltd., 2009 B.C.S.C. 1538,
para. 22-23 (Can. B.C. S.C.). The general principle of comity of nations
and deference to foreign courts’ decisions is not discussed in the paper but
is cited as a general principle in much of the case law.
5. Connecticut Ret. Plans & Trust Funds v. Buchan, [225] O.A.C. 106, para.
7 (Can. Ont. C.A.). “Commission evidence” is a term used to describe
evidence taken pursuant to a court order enforcing a letter of request or
letters rogatory from a foreign court. See also Ontario Pub. Serv. Emp.
Union Pension Trust Fund (Trustees of) v. Clark (2006), 270 D.L.R. 4th
429, 434-435 (Can. Ont. C.A.); Fecht v. Deloitte & Touche (1997), 32 O.R.
3d 417, para. 30 and 48 (Can. Ont. C.A.) (citing France v. DeHavilland
(1991), 3 O.R. 3d 705, 718 (Can. Ont. C.A.)).
6. King v. KPMG, 2003 CanLII 49333, para. 6 (Can. Ont. Super. Ct.).

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